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

[pumpytums]

Hi Martel,

have they provided the letter as detailed in (2b) below did you mention it in your WS sorry I only skimmed it.

 

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."

 

I would make sure you make the distinction between the Current account and the Overdraft agreement they are separate and connected. The current account is not covered by the CCA 1974 the Overdraft agreement (keep using that word) most definitely is.

 

As they have referred to the Notice as a default notice its even in their terms and conditions:-

 

A Default Notice Fee will be payable if we need to serve a default notice on you (for example, if you fail to repay your overdraft on demand or we wish to enforce any security we hold). This is in addition to any other charges that may apply.

 

6.6.5 We will not charge interest under General Condition 6.3.5(b) or

6.6.2 on any part of an overdrawn balance which represents:

(a) a Default Notice Fee or other sum (apart from interest) which

is payable by you in connection with a breach of your

obligations under your agreement with us.

 

These are their words out of their T&C.

 

Pumpytums

Edited July 14, 2010 by pumpytums

[Martel]

Hi Martel,

have they provided the letter as detailed in (2b) below did you mention it in your WS sorry I only skimmed it.No sign of an agreement - over 100 pages of T&Cs, an application completed by the Relationship Manager (no APR, charges, etc - just 'I understand that the OD facilities will be subject tot T&Cs set out in the facility letter addressed by the Bank to me and PP' by them for my signature).

 

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."

 

I would make sure you make the distinction between the Current account and the Overdraft agreement they are separate and connected. The current account is not covered by the CCA 1974 the Overdraft agreement (keep using that word) most definitely is.

 

As they have referred to the Notice as a default notice its even in their terms and conditions:-

 

A Default Notice Fee will be payable if we need to serve a default notice on you (for example, if you fail to repay your overdraft on demand or we wish to enforce any security we hold). This is in addition to any other charges that may apply.

 

6.6.5 We will not charge interest under General Condition 6.3.5(b) or

6.6.2 on any part of an overdrawn balance which represents:

(a) a Default Notice Fee or other sum (apart from interest) which

is payable by you in connection with a breach of your

obligations under your agreement with us.

 

These are their words out of their T&C.

 

Pumpytums

Hi Pump,

 

I quoted the determination in my Amended Defence:

 

7. The Defendant believes that it will form part of the Claimant’s Defence to this 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, 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;

nd 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."

 

8. The Defendant avers, therefore, that the Claimant is in default of the Defendant’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).

 

 

 

Is this something I should repeat?

 

As ever, thanks!!

 

Martel

[AndyOrch]

Hi Martel

 

Apologies for not being around,meeting myself on the way back at the moment:rolleyes:

 

The above WS looks fine and your additions gel well with my original content.

If you could direct me to their WS and I will have a last scan through it.

 

Regards

 

Andy

[Martel]

Hi Martel

 

Apologies for not being around,meeting myself on the way back at the moment:rolleyes:

 

The above WS looks fine and your additions gel well with my original content.

If you could direct me to their WS and I will have a last scan through it.

 

Regards

 

Andy

 

Hi Andy,

 

I can totally identify with 'meeting myself on the way back'!!

 

Ah, your 'original content' was a great guide - cannot thank you enough.

 

The Claimant hasn't filed a WS, as such, but POCs, Amended POCs, Reply to Defence and, of course, the application for a SJ hearing.

 

I'll paste the chronology of docs below (you'll also see that I've recently posted docs from the Bank that are relevant).

 

Pumpytums has raised an interesting point - in the Amended POCs and Reply to the Defence, the Claimant has included a stack of docs, but none of them the OD agreement or, obviously, the DN. Should I include reference to The Determination in my WS (it's in my Amended Defence)?

 

I'm assuming we're adhering to the argument the OD is governed by the CCA and no valid DN means termination is not valid?

 

Is it a good thing to raise the credit card (defaulted long before this situation - para 9 of my WS)? They've admitted they don't have the agreement (or one for the loan) and will not pursue it but does this open a whole new can of worms? In Para 16, I refer to charges - am assuming this doesn't only refer to default charges and includes charges and interest over the life of the account? Also, I know it's a technicality, but should I use 'I' or 'the Defendant' throughout?

 

HUGE thanks for all your help = sorry to add to your stress!!

 

Best,

Martel

 

MY DEFENCE

 

1. I, XXXXXX, am the defendant in this action and make the following statement as my defence to the claim made by Bank PLC

 

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

 

3. I am embarrassed at pleading to the particulars as they fail to comply with the Civil Procedure rules, in particular part 16 and practice direction 16, in particular paragraph 7.3 as the claimant has failed to supply a copy of the written document which forms the basis of this claim.

 

4. The claimant has failed to set out how the figures which they claim are calculated nor do they set out the nature and scope of any charges contained within the figure claimed.

 

5. 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).

 

6. 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:

 

Coutts v Sebastyen

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 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 1st February 1990.

 

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

 

8. 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.

 

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

 

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I receive a letter from Cobbetts notifying me of a change of solicitor.

 

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I receive a letter from Cobbetts , ‘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.’

 

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I receive an Order from the Court:

1. Unless the Claimant do by XXXX file and serve a fully pleaded claim, claim do stand struck out;

2. If the Claimant complies with paragraph 1 defendant do file ad serve and (sic) defence by XXXX

3. Claimant do pay the Defendant costs of the amendment and the amended defence if any.

 

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Cobbetts Solcitors filed this Amended Particulars of Claim:

 

1. For the avoidance of doubt, pursuant of the Order of ……., these POCs replace in their entirety the Particualrs set out in the Claim Form

2. The Claimant is and was at material times a plc……

3. At all material times, pursuant to a contract constituted by the banker-customer relationship, the Defendant, XXXXXX, held an Advantage Private acc’t with the Claimant of which details are as follows:

3.1 Account number XXX and sort code XXXXX (“the Current Account”)

4. The Claimant will say that at the time of issue the sum owed under the Current Acc’t was XXXXXXX

5. attached hereto are bank statements…….

6.. the Claimant will seek to rely on the T&Cs that govern the Current Acc’t, 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.

7. A copy of the T&Cs are attached…

8. On ------------ the Claimant issued a DN in respect of the Current Acc’t and a copy of the DN is attached hereto

 

_________________________ _________________________ _____________

 

I file an Amended Defence (with much credit to Andyorch, Car and Magda!):

 

1. I, XXXXXX am the Defendant in this action and make the following statement as my amended defence to the claim made by National Westminster Bank PLC. I am a litigant in person and I make this statement from my own knowledge and experience.

 

2. It is admitted that I had banking facilities with the Claimant for over ten years. An overdraft arrangement was offered and available. Without prior consultation or forewarning the Claimant tried to pressure me into accepting a personal loan on the expiration of the alleged Overdraft which they were fully aware that I could not afford to repay.

 

3. In regard to the Claimant’s amended particulars, they fail to comply with the Civil Procedure rules, in particular part 16 and practice direction 16, in particular paragraph 7.3 as the claimant has failed to supply a copy of the written document which forms the basis of this claim. Additionally, in paragraph 8, the Claimant seeks to rely on a Default Notice referring to a personal loan that does not apply to the alleged Overdraft account. The Claimant also seeks to rely on terms and conditions dated 1 January 2010 that were not applicable to the alleged Overdraft, either at its inception or expiration.

 

4.The Claimant has failed to set out how the figures which they claim are calculated nor do they set out the nature and scope of any charges contained within the figure claimed. The defendant calculates that, during the life of the alleged Overdraft, £XXXXX in unfair charges and £XXXXXin interest has been debited from the account. unfair charges are punitive at common law and I put the Claimant to strict disclosure to justify their charges. No admissions are made by the Defendant as to the incorporation of any term into the contract between the Claimant and the Defendant purporting to entitle the Claimant to levy these charges. If the Claimant is able to establish that the contract did contain such terms, the Defendant 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

 

5. 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).

 

6. The Claimant has failed to supply any originally executed documentation relating to the overdraft agreement as requested by the Defendant.

 

7. The Defendant believes that it will form part of the Claimant’s Defence to this 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, 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;

nd 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."

 

8. The Defendant avers, therefore, that the Claimant is in default of the Defendant’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).

 

9. The Claimant has failed to provide a document that complies with this request. Accordingly, the Claimant is “in default” under s.78(6) and the Defendant respectfully submits that this prevents the Court enforcing this debt until the default is rectified as per s.78(6)(a) CCA 1974. The Claimant has also committed an offence under s.78(6)(a) CCA 1974.

 

10. The Defendant, therefore, puts the Claimant to strict proof of;

10.1. 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;

10.2. 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;

10.3. 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)

 

11. 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.

 

12. As there is no credit agreement provided that complies with the Act, the Claimant cannot seek to rely on enforcement in the form of a Termination Notice, Default Notice, or other, as the requirements of the CCA 1974 has not been met. The Default of this account is therefore unlawful and inaccurate.

 

13. The behaviour of the Claimant in bringing these proceedings is entirely vexatious. The Claimant made vigorous attempts to force me into taking a personal loan whilst fully aware that I would not be able to service said loan payments. I reiterated my position on a number of occasions yet the Claimant maintained a take it or leave it attitude and refused to discuss alternative arrangements. The situation has caused me much distress and inconvenience and continues to do so.

 

_________________________ _________________________ _____________

 

I then receive an Application Notice from Cobbetts, requesting my Defence is struck out, etc.:

 

Asking the Court to strike out my Defence and make a judgment in favour of Natwest 'pursuant to CPR 3.4 (2) (a) (ii) and (b) as the Defendant has no real prospect of successfully defending the Claim and there is no other compelling reason why the case should be disposed of at trial.'

 

They then suggest a 30 minute hearing.

 

Their 'evidence' is:

.......2. the Claimant submits that the Def's Defence by struck out and there be Judgment for the Claim Pursuant to CPR 3.4 (2) (a) the Claimant respectfully submits that the Def's Defence discloses no reasonable grounds for defending the Claim and that the Def's Defence be dismissed and there be Judgment for the Claimant against the Def pursuant to CPR 24.2 (a)(ii) and (b) ......The Defendant's attention is drawn to CPR 24.5 (1) which provides that if the respondent to an application for the summary Judgment wishes to rely on written evidence at the hearing, she must -

(a) file the witness evidence and

(b) serve copies on every other party to the application at lest 7 days before the summary Judgment hearing’

 

Cobbetts also enclose a Reply to Defence:

 

1. Unless otherwise stated, reference to para numbers in this Reply are to the appropriate paras of the Defence

2. This Reply to Defence is filed and served WP to the right of the Claimant to apply for summary judgment in respect of and/or to strike out the Defence.

3. Save as insofar as it consists of admission and save as otherwise pleaded to below, the Claimant joins issue with the Defendant upon his Defence.

4. For the avoidance of doubt, the Claim relates to one account the Defendant holds with the claimant of which details are as follows: XXXXXX

5. As to para 2, the first sentence is admitted. As to the second sentence, it is denied that the Defendant was pressured into accepting a personal loan upon the expiration of the OD facility. In any event, the Claim relates to outstanding monies due in respect of a Current Acct not a Loan Acct.

6. Para 3 is denied. The Claimant will say that no written agreement is in place. The Defendant has been provided with statement from xxxx to xxxx which show all credits and debits made on the acct and shows that the Acct has been fully operational for the last 7 yrs. In any event, the Defendant’s own admission, she has a banking facility and therefore the existence of the acct is not in dispute.

7. For the avoidance of doubt, the Claimant issued a DN following a Default on payments in respect of a Loan Acct the Defendant holds with the Claimant (“the Loan Acct”). the Claimant confirms that when a customer defaults on any one acct held, demand for payment of all accts with an (sic) outstanding balances are made. On that basis, the Claimant issued a DN is respect of the default on the Loan Acct and as the Current Acct had an outstanding balance a DN was also issued on that acct.

8. The Claimant confirms that the T&Cs attached to the APOC are the T&Cs which govern the Current Acct. The Claimant confirms the Defendant opened the Acct on XXX and since this date the Claimant has updated threes T&Cs. As per the Claimant’s standard practice, al customers are sent copies of any amendments/updated T&Cs. However, attached hereto are historic T&Cs which would have governed the Current Acct at the time the Acct was opened in XXXX.

9. Para 4 is denied, the Defendant has been provided with statements relating to the Current Acct which shows he accrual of debt together with al charges and interested (sic) applied to the acct.

10. The Claimant will say that interest and charges have been applied to the Current Acct in accordance with the T&Cs and specifically Section 6 applied to the Current Acct are in lie with the T&Cs and I refer to the following:

10.1 6.6 Interest, fees, charges and other costs

6.6.2 Interest and charges relating to ODs (whether arranged in advance or not) will be payable and will be calculated and charged in the manner and at the rates set out in Personal and Private Banking – A Guide to Fees and Interest and in any OD confirmation letter. Interest will be calculated on the daily cleared OD balance on your acct. (both before and after any judgment for payment)

6.6.4 We may debit your acct with any interest, fees, charges or other costs, even if this results in or increases an unarranged OD. If an unarranged OD arises in this way, we will not charge a Paid Referral Fee under General condition 6.3.5

11. A copy of the booklet Personal and Private Banking – A Guide to Fees and Interest is attached hereto. Section 6 illustrates when interest is applied to the Current Acct and at what rate:

11.1 6. Interest due on OD balances

Arranged ODs

1. Advantage Private, …..etc

If you have an arranged OD facility with us in advance and you se this facility within the thresholds shown below, you will not pay any interest. If the amt you OD under and arranged OD facility exceeds these thresholds, you will pay interest at the rates shown in the tables below on the OD balance – please note that this includes the part of the balance which is within any interest fee threshold that applies to your acct. However, we will not charge interest on any part of the OD balance which represents fees, charges or costs of the kind described below under the heading Sums which do not bear interest. If you have arranged an OD facility with us in advance under which you pay interest at a rate other than the rates shown in the tables below, the interest free thresholds will not apply to your acct.

Advantage Private, 1.06 Nominal monthly rate, 12.73 Nominal annual rate, 13.50 EAR variable. 18.49% EAR typical (variable)

Any amt OD without an arranged OD or in excess….will be charged at the rates…..1.06 Nominal monthly rate, 12.73 Nominal Annual rate, EAR% Typical (variable) 13.50………..

Sums which do not bear interest…which represents – A DN Fee or other sum (apart from interest)) you must pay us in connection with a breach of your obligations….or – a Maintenance Charge, Paid Referral Fee, Guaranteed Card Payment or Unpaid Item Fee

12. Para 5 is denied, there is no written agreement and the Claimant repeats para 6 above.

13. As to para 6, the Claimant will say that the Defendant requested an OD facility of XXXX on XXXXX y ay of a telephone application ad on XXXX an OD fee of XXX was debited from the Current Acct as evidenced on the statements. Attached hereto is a copy of the Application form together with screen print providing that the OD limit on the Current Acct was XXXX.

14. As to para 7, the Claimant will say that there is no written or executed agreement in respect of the Current Account or OD. Para 13 above is repeated.

15. Para 8 & 9 are denied. The Current Acc’t is not a regulated agreement. In any event, the Defendant has been provided with the Statements together with the T&Cs which govern the Current Acct.

16. As to para 11, the Claimant repeats para 7 above ad refers to Section 6.1 of the APOC

17. As to para 11, the Claimant repeats para 7 above and refers to Section 6.1 of the APOC

18. As to para 12, it is admitted that there is no requirement to send a DN in respect of outstanding monies due on a Current Acct. However, a DN was issued following a default on payments to the Loan Acct. In any event, the Claimant will say that any such agreement is excluded from Part V of the CCA 1974 pursunat to S.74(1)(b)

19. In any event a Formal Demand for payment was sent to the Defendant on XXX. The Claimant confirms that the Formal Demand is automatically generated from the Claimants Case Management System and therefore copies are not retained.

20. Attached hereto are screen prints from the Claimant’s Case Management System which illustrates that the Formal Demand was issued on XXXX together with a copy of the Claimant’s template Formal Demand.

21. The Formal Demand would have been sent to XXXXX which was the Defendant’s address at the time of serving the Formal Demand

22. As to para 13, the Claimant denies bringing the claim is vexatious and that the Defendant was forced into taking out a Personal Loan

[AndyOrch]

Martel I will need to digest the above thoroughly.It is good to type out the chronological events as this gives you a script to not only prompt you but to realize the chain of events.

 

With regards to the points you raise above in your intro you need to get the following crystal clear in your mind.

There is no documentation or DN for Overdrafts and unlawful termination cant happen it cant be rescinded as there is no agreement.It can be terminated at any time by the claimant once Notice is served vis a vis Sections 76(1) and 98 (1).

You are arguing in which the manner of all the above was served upon you and the treatment that the Claimant inflicted and the position you was forced into.

 

Overdrafts are notoriously difficult to defend against against as they are a fate a complis with ones current account.The fact that the claimant cant produce agreements for your CC or Personal Loan will only entice them to dig their heels in deeper with regards to your O/D.

 

However let me see what we have above and i will get back to you over the weekend.

 

 

Regards

 

Andy

[Martel]

Martel I will need to digest the above thoroughly.It is good to type out the chronological events as this gives you a script to not only prompt you but to realize the chain of events. Chronological events as in how the situation developed and got to the legal stage? Or are you referring to the legal chronology above?

 

With regards to the points you raise above in your intro you need to get the following crystal clear in your mind.

There is no documentation or DN for Overdrafts and unlawful termination cant happen it cant be rescinded as there is no agreement.It can be terminated at any time by the claimant once Notice is served vis a vis Sections 76(1) and 98 (1).

You are arguing in which the manner of all the above was served upon you and the treatment that the Claimant inflicted and the position you was forced into.Thanks for the clarification - am having difficulty in retaining my tenuous grasp of the difference (obviously!).

 

Overdrafts are notoriously difficult to defend against against as they are a fate a complis with ones current account.The fact that the claimant cant produce agreements for your CC or Personal Loan will only entice them to dig their heels in deeper with regards to your O/D.Thought so but I can never predict what can (perversely) strengthen an argument.

 

However let me see what we have above and i will get back to you over the weekend.

 

 

Regards

 

Andy

Andy, thank you very much. Sorry it's all rather convoluted!

[pumpytums]

Hi Andy,

I don't understand how a bank can issue a 76(1) & 98(1) notice when those two acts clearly state that they are not to be used when the creditor breaches the agreement and they should also used for none default cases. The bank refers to this notice in writing and their T&C as a default notice.

 

I was also of the understanding that a overdraft is grated for a period of time and is then reviewed at the end of that period. I agree they can call it in at any time but they still have to issue a valid notice. By issuing a duff notice because of the creditors breach/default then terminating on a separate letter the termination demands immediate payment under the CCA they should give 7 days.

 

As someone on CAG told be Law trumps Contract.

 

Pumpytums

[Martel]

For what it's worth - a 'Default Fee' of £30 is also on my bank statement (dated the same day as the 76(1) and 98(1) Notice.

 

ALSO.....I'm in a muddle about when the OD was renewed, etc. so I went back to Para 13 of Claimant's Reply to Defence:

 

13. As to para 6, the Claimant will say that the Defendant requested an OD facility of XXXX on XXXXX by way of a telephone application and on XXXX (14 days later) an OD fee of XXX was debited from the Current Acct as evidenced on the statements. Attached hereto is a copy of the Application form together with screen print providing that the OD limit on the Current Acct was XXXX.

 

So, I'm looking at the 'telephone application' (they've actually attached two) and nowhere does it say it's been accepted. In the back, smudgy box beneath the signature box, it's possible to make out very faintly 'application declined' but nothing else except two ticked boxes. I don't have a record of a letter of acceptance. On the statement, it does indeed show a OD arrangement fee (half the amount stated on the application) debited about 14 days after the date of the application. I've also noticed that the 'Default Fee', debited about a month later, when the account balance was UNDER the OD amount applied for.

 

I'm also now looking at a 3 page 'SAS Output', which is all in indecipherable bankspeak code (no confirmation of the OD or amount here) - is that the 'screen print'?

 

As the Bank defaulted the OD 6 weeks before the expiration date on the application and whilst I was still under the amount applied for, I think they've sent an application that was DECLINED with the REply to Defence.

 

Does this make any difference???

[Martel]

And, while I was picking through the attachments to the Claimant's reply to the Defence....

 

19. In any event a Formal Demand for payment was sent to the Defendant on XXX. The Claimant confirms that the Formal Demand is automatically generated from the Claimants Case Management System and therefore copies are not retained.

20. Attached hereto are screen prints from the Claimant’s Case Management System which illustrates that the Formal Demand was issued on XXXX together with a copy of the Claimant’s template Formal Demand.

 

I've tried to decipher the screen print from the CCMS - it's REALLY smudgy and I can't find any info on there that links it to the OD. there ma be reference numbers that the bank uses internally, but how am i supposed to know/believe it relates to the OD account?

 

this is what I could see:

 

 

I'm TRYNG to look at a smudgy, barely legible doc that could be the 'screen print' but who knows? It does look like a picture of a computer screen. It's headed by something that looks like 'Debt manager ????? Internet Explorer provided by Technology Service', then a row of symbols and a gray, smudgy column down the left hand side. In the centre, 'View Router Header' - router acc't no., client ref number. current work group, user id, status (01): Recoveries, Current R???: RiN Defended. It lists a L???ing Balance, Current Balance (about £6,500 more) and a Working Balance (About £4,500 less than the 'Current Balance'). The next section is headed 'Next Event' - RiN Delay 6 months, dated in two weeks time; Accounts:2; Debit Items: 1; Names:1.

 

At the bottom of the page, there are columns with dates and possibly initials, then some weird coding, followed by times and more weird coding. The last line seems to state Formal Demand produced - but there's nothing I can see here that links this screen print to my account.

[pumpytums]

Hang on a moment does it mention router account? Router accounts are very interesting and a bit shady. I think HP mum posted something on my thread about this. They certainly don't this being aired.

 

It's all very odd, I sent a SAR so I should have got everything I got none of what you have.

 

Interestingly years ago my OD was reduced down to virtually nil as I took out a loan. The Bank under their own steam then decided to increase the limit of their own accord it was never requested. So as Andy has said a good angle would be the way in which you were treated how the fees added to the overdraft. How they tried to force a loan that you couldn't afford etc. It all adds as ammo.

 

Pumpytums

[Martel]

Hang on a moment does it mention router account? Router accounts are very interesting and a bit shady. I think HP mum posted something on my thread about this. They certainly don't this being aired.

 

It's all very odd, I sent a SAR so I should have got everything I got none of what you have.

 

Interestingly years ago my OD was reduced down to virtually nil as I took out a loan. The Bank under their own steam then decided to increase the limit of their own accord it was never requested. So as Andy has said a good angle would be the way in which you were treated how the fees added to the overdraft. How they tried to force a loan that you couldn't afford etc. It all adds as ammo.

 

Pumpytums

 

Yes, the doc is absolutely headed 'Router Account Header'. I've now got my magnifying glass out (no kidding!). It lists 'Loading Balance, Current Balance and Working Balance' - all completely different amounts. The 'Current Balance' is more than a third MORE than the amount of the Claim (remember, it states it's only for ONE account - unless they've combined the loan and OD but the loan isn't part of this claim). It also states the type of currency, GBP (why would a UK bank need to do that?).

 

In the weird columns at the bottom of the page, one line says 'English Sols req'd' and two lines later '???/Eng?.

 

Something really funny going on here......love to find out more (not all that much so far)

 

The bank's reply to my SAR was totally random and patchy.

 

This stuff (and the docs I've posted) came through with the Amended POCs and the Reply to the Defence.

 

Best,

Martel

[Blondie40]

Hi Martel, how things.

 

These are old ones (you may already be aware of them).

 

B40

 

Couple stung by £100,000 ‘secret’ loan - Times Online

 

 

MP fears bank's phantom paperwork may be just the tip of an iceberg | Money | The Guardian

 

 

How trustworthy is your bank? | Money | The Guardian

 

 

But this must be the worst:

 

http://www.guardian.co.uk/money/2009/jul/25/royal-bank-loan-debt

Edited July 15, 2010 by Blondie40

[Martel]

Hi Martel, how things.

 

These are old ones (you may already be aware of them).

 

B40

 

Couple stung by £100,000 ‘secret’ loan - Times Online

 

 

MP fears bank's phantom paperwork may be just the tip of an iceberg | Money | The Guardian

 

 

How trustworthy is your bank? | Money | The Guardian

 

 

But this must be the worst:

 

Royal Bank of Scotland tactics in the spotlight as personal loan debts balloon | Money | The Guardian

 

Blondie, you are sooo in the know and on the go.....I've seen two but not the others. Thank you. My situation must be different, as the court Claim, while extortionate, is kind of capped (but the amounts on the 'router' doc are incredible!).

 

I mean, I'm looking at the details for the 'router account' and I think I'm losing my mind. Three different balances (all over the top) and references to GBP (hello! it's a UK bank), then a request for 'English' sols......

 

All totally bizarre....can't wait to ask them for an explanation in court.

 

Wondering what your entertainment is for Saturday night???

 

MXX

[AndyOrch]

Martel and Pumpy

 

Welcome to the weird and wonderful world of the RBS/NW Router accounts syndrome.For all intense purposes all banks regard the Sec 76(1)98(1) as a form of DN/Termination Notice as the CCA 1974 considers.However as we are aware O/Ds are exempt Part V from the above act on certain permentations.All overdrafts are subject to recall in their entirety at the banks discretion (this is clearly explained in all Banks T&Cs covering the use of this facility) at their discretion,whether you are in dispute with them or not.Once the Sec 76(1)98(1) as been issued it allows 14 days to the debtor to agree a proposal for repayment.If not responded to then the Formal Notice is released and inevitably legal proceedings to follow in cases,if not sold to some random DCA to try their chances.

 

Once your account as been transfered to Telford (RBS/NW) debt management(CMS) any payments you may have made seem to evaporate into thin air and no record can be traced.Account numbers change and all things weird happen to your account including unexplained interest.

I would recommend that you contact Paul (mentioned in the above articles) he will be able to unravel some of the mysteries that are troubling you and may be of use in your case and SJ hearing.

 

Regards

 

Andy

[Martel]

Martel and Pumpy

 

Welcome to the weird and wonderful world of the RBS/NW Router accounts syndrome.For all intense purposes all banks regard the Sec 76(1)98(1) as a form of DN/Termination Notice as the CCA 1974 considers.However as we are aware O/Ds are exempt Part V from the above act on certain permentations.All overdrafts are subject to recall in their entirety at the banks discretion (this is clearly explained in all Banks T&Cs covering the use of this facility) at their discretion,whether you are in dispute with them or not.Once the Sec 76(1)98(1) as been issued it allows 14 days to the debtor to agree a proposal for repayment.If not responded to then the Formal Notice is released and inevitably legal proceedings to follow in cases,if not sold to some random DCA to try their chances.

 

Once your account as been transfered to Telford (RBS/NW) debt management(CMS) any payments you may have made seem to evaporate into thin air and no record can be traced.Account numbers change and all things weird happen to your account including unexplained interest.

I would recommend that you contact Paul (mentioned in the above articles) he will be able to unravel some of the mysteries that are troubling you and may be of use in your case and SJ hearing.

 

Regards

 

Andy

 

Hi Andy,

 

Thanks for the explanation - does your first paragraph mean I haven't got a case? I'm confused by the Claimant's insistence that the DN on the loan acct is the DN for the OD, then they state a DN isn't necessary. Why do they bother?

 

All this router stuff is bizarre. I'll certainly get in touch with Paul but might you still be able to assist with my WS?

 

Thanks for all your help,

Martel

[pumpytums]

Cheers Andy,

I have the Telford Debt management, the random interest but so far the account number is the same or is it??

 

My SAR last year was rather heavy on statements I got the lot way back after writing many letters. But rather light on everything else considering the account should have heaps of history and notes I received a single sided A4 sheet with perhaps 10 entries. The Formal demand was mentioned but nothing else, just some blathering's from their in-house DCA.

 

With regards to the infamous DN/TN or whatever they wish to call it I believe even the OFT was unsure if it should have been used in the way it was. I seriously believe OD's are the back street Mugging end of Consumer Credit.

 

I believe the Bank(s) in question also love turning their old unenforceable loans into overdrafts by helping themselves to the debtors bank account overdraft as there is a term buried in the loans T&C that allows them to turn a 6% loan into 18% OD. Nice.

 

And I thought MBN@ were the alleged bad boys of consumer credit.

 

Pumpytums

[AndyOrch]

Hi Andy,

 

Thanks for the explanation - does your first paragraph mean I haven't got a case? I'm confused by the Claimant's insistence that the DN on the loan acct is the DN for the OD, then they state a DN isn't necessary. Why do they bother? Of course you have a case in a case of the way the bank as miss treated you.Dont be bamboozled the DN for the loan account is a separate entity ie a normal DN that complies with the CCA and its prescribed form and layout.It will list the arrears outstanding on the Loan and the balance and any early settlement and reduction in interest.Along with the statuary 14 days to remedy said breach.Your Notice sec 76(1) 98(1) is for your overdraft it will state the amount of overdraft outstanding as at that date plus any interest to date.There will be no mention of arrears but will give a date for you to contact them with your proposals re payment this is usually 21 days.

 

All this router stuff is bizarre. I'll certainly get in touch with Paul but might you still be able to assist with my WS? That would be a wise move Paul is very experienced with regards to Routers and RBS.I will keep an eye on your thread Martel and assist when able.

 

Thanks for all your help,

Martel

 

 

Regards

 

Andy

[Martel]

Thanks, Andy. Sorry to be thick, but I don't understand how any of these Notices help me - they all seem properly presented. I'm not grasping the essence of what my argument is.

 

I don't think Paul accepts PMs, so have gone on to Firstship's thread, where Paul last posted.

 

Best,

Martel

[AndyOrch]

Cheers Andy,

I have the Telford Debt management, the random interest but so far the account number is the same or is it??

 

My SAR last year was rather heavy on statements I got the lot way back after writing many letters. But rather light on everything else considering the account should have heaps of history and notes I received a single sided A4 sheet with perhaps 10 entries. The Formal demand was mentioned but nothing else, just some blathering's from their in-house DCA.

 

With regards to the infamous DN/TN or whatever they wish to call it I believe even the OFT was unsure if it should have been used in the way it was. I seriously believe OD's are the back street Mugging end of Consumer Credit.

 

I believe the Bank(s) in question also love turning their old unenforceable loans into overdrafts by helping themselves to the debtors bank account overdraft as there is a term buried in the loans T&C that allows them to turn a 6% loan into 18% OD. Nice.

 

And I thought MBN@ were the alleged bad boys of consumer credit.

 

Pumpytums

 

 

You seem to have grasped the system well Pumpy does make MB look like pussycats in comparison

 

Andy

[AndyOrch]

Thanks, Andy. Sorry to be thick, but I don't understand how any of these Notices help me - they all seem properly presented. I'm not grasping the essence of what my argument is.

 

Your argument is being treated with some civility and getting this matter to some kind of mutual agreement and not bulldozed into the gutter.

You are being fed all kinds of nonsense by the Claimant there is a set procedure and pre action protocol to follow before litigation is commenced and litigation should be the very last option. (ask any DJ:p)

 

I don't think Paul accepts PMs, so have gone on to Firstship's thread, where Paul last posted.Just inform one of the site team perhaps Citizen they will contact him.

 

Best,

Martel

 

Kind Regards

 

Andy

[pumpytums]

Hi Martel,

so did you only ever receive the one Default??/Termination notice the s76(1) & 98(1)?

 

If so that is incredibly dodgy, loans are covered fully by the CCA and must be defaulted using s87 as this section is used for breaches of agreement. So for example if you stop making payment to your loan, the bank is perfectly in their right to issue a s87 Default Notice. One a valid DN is issued the bank can then Lawfully terminate the agreement and demand sums not yet due. If they don't issue a valid DN they are not allowed to terminate the agreement and if they do or demand monies not yet owed they have moved into breach of contract territory.

 

Have a read of a recent post by Banker_Rymes this is regarding Amex but is still applicable.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/248197-cca-terminated-now-amex.html

 

S173

 

Consumer Credit Act 1974 (c. 39) - Statute Law Database

 

Basically the CCA was created to allow and protect consumers to borrow money over time. Otherwise any CC company could give you a card for £5k you put £4k on it the next day he turns round and says that £4k I lent you I want it back today. Next thing you know you have a CCJ and charging order on your home, s173 strictly forbids this.

 

This definitely applies to your loan with regards to the OD who knows but s87 does seem more pertinent to OD's too as it allows the Creditor to terminate because of a breach for example going outside your OD limit and not going back inside it. I have actually seen a s87 notice issued for a OD, HSBC I think.

 

Back to your loan though a s87 notice must be used end of story.

 

Pumpytums

[AndyOrch]

under section 87 of the CCA 1974 it is clear that if the full amount is being claimed then the need to send a default notice.

 

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.

 

 

(2) Subsection (1) does not prevent the creditor from treating the right to draw upon any credit as restricted or deferred, and taking such steps as may be necessary to make the restriction or deferment effective.

 

(3) The doing of an act by which a floating charge becomes fixed is not enforcement of a security.

 

(4) Regulations may provide that subsection (1) is not to apply to agreements described by the regulations.

 

 

88 Contents and effect of default notice

 

(1) The default notice must be in the prescribed form and specify—

 

(a) the nature of the alleged breach;

 

(b) if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken;

 

© if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.

[Martel]

Hi Martel,

so did you only ever receive the one Default??/Termination notice the s76(1) & 98(1)? For the OD, yes. But remember, the Claimant is saying that the DN on the loan acct acts as a DN on the OD (as if!!). In any event, the DN on the loan acct was issued on the same day as the s76(1) and 98(1) notice.

 

If so that is incredibly dodgy, loans are covered fully by the CCA and must be defaulted using s87 as this section is used for breaches of agreement. So for example if you stop making payment to your loan, the bank is perfectly in their right to issue a s87 Default Notice. One a valid DN is issued the bank can then Lawfully terminate the agreement and demand sums not yet due. If they don't issue a valid DN they are not allowed to terminate the agreement and if they do or demand monies not yet owed they have moved into breach of contract territory.Sorry, the bank issued proper DN on the loan acct (which is NOT part of this claim) and is saying it also applies to the OD

 

Have a read of a recent post by Banker_Rymes this is regarding Amex but is still applicable.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/248197-cca-terminated-now-amex.html

 

S173

 

Consumer Credit Act 1974 (c. 39) - Statute Law Database

 

Basically the CCA was created to allow and protect consumers to borrow money over time. Otherwise any CC company could give you a card for £5k you put £4k on it the next day he turns round and says that £4k I lent you I want it back today. Next thing you know you have a CCJ and charging order on your home, s173 strictly forbids this.

 

This definitely applies to your loan with regards to the OD who knows but s87 does seem more pertinent to OD's too as it allows the Creditor to terminate because of a breach for example going outside your OD limit and not going back inside it. I have actually seen a s87 notice issued for a OD, HSBC I think.

 

Back to your loan though a s87 notice must be used end of story.

 

Pumpytums

 

Sorry for the confusion around this (confuse and conquer seems to be the Claimant's strategy!). This claim is just for the OD - but they are dragging the loan into the argument by saying that the DN on the loan also serves as a DN on the OD - even though they then say a DN is not necessary on an OD. like they're covering all their bases. Clearly, the loan DN has nothing whatsoever to do with the OD - the OD isn't mentioned on the Loan DN.

 

Thanks so much for these thread referrals - can't wait to have a look!

 

Best, Martel

[Martel]

under section 87 of the CCA 1974 it is clear that if the full amount is being claimed then the need to send a default notice.

 

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.

 

 

(2) Subsection (1) does not prevent the creditor from treating the right to draw upon any credit as restricted or deferred, and taking such steps as may be necessary to make the restriction or deferment effective.

 

(3) The doing of an act by which a floating charge becomes fixed is not enforcement of a security.

 

(4) Regulations may provide that subsection (1) is not to apply to agreements described by the regulations.

 

 

88 Contents and effect of default notice

 

(1) The default notice must be in the prescribed form and specify—

 

(a) the nature of the alleged breach;

 

(b) if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken;

 

© if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.

 

 

Thanks, Andy. The Loan DN looks properly executed - it's scanned in the attachment in post 321. Other scanned correspondence is in post 323.

 

Best,

Martel

[AndyOrch]

Ok Martel

 

Just so everyone is clear the Claimant is only claiming the O/D and litigation is only for the O/D