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

[MAGDA]

Hi Martel, might be a good idea to actually post up the notices you have received and see what others make of them. If Andy does come on, he will probably want to see them anyway. Not sure if you are happy posting them on your thread, but have a think anyway.

 

Also, as you say, work out the charges (with interest) so that you have a figure in mind for how much they actually owe you.

 

When the overdraft ended, even if it continued to 'limp' on for a while, that was the point that the 3months and 7 days should have commenced from - so for the point that they started to charged extra interest/charges on the account. That would be the point at which they obviously revoked the original terms of the 'agreement' and they needed then to notify you in writing of the charges/interest you were incurring on the account. If it wasn't done within that period then they didn't comply with the determination. That's why it might be worth letting someone take a look at the section 76(1) 98(1) notice to see what's what.

 

Magda

[vint1954]

I don't think overdrafts are simple. It depends on the type and circumstances of the overdraft.

 

In the case of a standard overdraft to a current account, they are covered by some provisions of the CCA BUT they are exempted from most of the requirements regarding forrm and content of documents; service of notices; service of copies etc., therefore S77/78 requests are not applicable simply because there is no document to produce.

 

1.1 What is covered by the s74 determination?

 

A determination under s74(3) was made by the OFT with effect from 1 February 1990. It applies to d-c agreements enabling the debtor to overdraw on a current account, under which the creditor is a ‘bank’ as defined in the Bankers’ Books Evidence Act 1879, provided that certain conditions are satisfied – see Q1.5.

 

A separate determination was made in respect of certain agreements connected with the death of a person.

 

Copies of the determinations may be obtained from the OFT.

 

Agreements covered by a s74(3) determination, and satisfying the relevant conditions, are exempt from most Part V rules including s61(1) on execution. However, the Agreements Regulations will apply to any document embodying such an agreement, and to any term expressed in writing – see Q1.2.

 

1.2 Are all bank overdrafts exempt?

 

The s74 determination in respect of bank overdrafts (see Q1.4) applies subject to the following conditions:

· the creditor must inform the OFT in writing of his general intention to enter into such agreements;

· the debtor must be informed, at or before the time an agreement is concluded, of the following:

o the credit limit (if any)

o the annual rate of interest and any charges applicable, and the conditions under which these may be varied

o the procedure for terminating the agreement;

· the above information must be confirmed in writing.

 

Furthermore, where a debtor overdraws a current account with the tacit agreement of the creditor, and the account remains overdrawn for more than three months, the creditor must inform the debtor in writing not later than seven days after the end of that period of the annual rate of interest and any charges applicable.

 

On the other hand, they may form part of a wider agreement or financial set up, as detailed below, by Francis Bennion.

 

 

 

Note on Consumer Credit Act 1974 s 18

 

 

See also the following, which also relate to the Consumer Credit Act 1974 s 18, 1999.004, 1999.001.NFB and 2006.001.NFB.

 

 

II

 

 

Addendum: National Westminster Bank PLC v Anthony John Story and Mary Pallister

 

Since the above article was published in Release 49 the Court of Appeal has given judgment in the case of National Westminster Bank PLC v Anthony John Story and Mary Pallister, which is reported at [1999] CCLR 70. This is the first case on section 18 of the Consumer Credit Act 1974 to reach the Court of Appeal. The above article should be read subject to the following comments on the case, which is referred to as Story.

 

Story concerned an agreement between the bank and the appellants made in November 1986 by which the bank agreed to advance a total of £35,000 by three separate credit facilities: an overdraft of £15,000 to Mr Story and two separate loans, of £5,000 and £15,000, to the appellants jointly. By subsequent agreements the permitted overdraft rose to £61,572.78 and the loans to a total between them of £456,012.16. The appeal concerned the latter sum only, and the question was whether or not, under section 18 of the 1974 Act, the November 1986 agreement, so far as it related to the two loans, should be treated for the purposes of the Act as two separate agreements, one for each loan. If the answer was in the affirmative they would on the facts be regulated agreements which were improperly executed, and therefore subject to section 65(1) of the Act (consequences of improper execution).

 

The only ground on which it was alleged by the appellants that the two loans should be so treated was that the loan for £5,000 was a restricted-use credit agreement as defined by section 11(1) while the other loan was an unrestricted-use credit agreement as defined by section 11(2). It was held by His Honour Judge Jack in the Bristol Mercantile Court that in fact both loans were for unrestricted-use credit and that the November 1986 agreement was a single agreement that therefore did not fall within section 18. Both these findings were upheld on appeal. They involved a finding that the only reason the appellants had for treating the loans as two credit facilities rather than one was to provide what Auld LJ at 4E described as ‘simple accounting for what was believed to be their entitlement to mortgage [tax] relief of £5,000’. This would not be a relevant factor for the purposes of section 18.

 

The decision in Story has some bearing on the legal meaning of section 11 of the 1974 Act, but that is not our present concern. So far as concerns section 18 the only interest of the decision lies in certain obiter dicta which reveal an uncertain judicial grasp of the intended working of the section. The purpose of the following notes is to resolve any doubts thus created. References are to the transcript of the Court of Appeal judgment.

 

1. Judge Jack, as quoted by Auld LJ at 3B and 8G, said ‘it would be artificial to break [the transaction] down into three separate agreements and contrary to the way it was made’. This is an inadmissible argument. Section 18(2) clearly and peremptorily says that, where a part of an agreement falls within section 18(1), that part shall be treated for the purposes of the Act as a separate agreement. Section 18(2) is necessarily artificial because ex hypothesi the parties themselves made only one agreement.

 

2. Auld LJ at 6E repeats, without refuting it, a suggestion by counsel that section 18 could have been got round if the parties had negatived its application by an express stipulation in their agreement. This overlooks the fact that section 173(1) of the Act forbids contracting out.

 

3. Auld LJ at 14A-D appears to give support to the suggestion in paragraph 4.5 of the Office of Fair Trading’s discussion paper of June 1995 ‘Multiple Agreements and section 18 of the Consumer Credit Act 1974’ that an agreement is not in parts if the categories are so interwoven that they cannot be separated without affecting the nature of the agreement as a whole. This suggestion runs contrary to the plain wording of section 18 and is without any foundation.

 

4. Auld LJ at 14F supports Professor Goode’s suggestion mentioned above in this article (page 3) that the phrase ‘category of agreement mentioned in this Act’ should be construed as if it said ‘category of agreement mentioned in Part II of this Act’. For the reason I give there, this view is untenable. Auld LJ goes on to say: ‘On that approach . . . restricted-use and unrestricted-use credit agreements . . . are separate ‘categories’’. They are undoubtedly separate categories on either approach.

 

5. Judge Jack and Auld LJ overlooked the effect of section 18(1)(a) in rendering the overall agreement a multiple agreement by reason of two distinct facts. The first (Case A) is that one part of it (the £15,000 overdraft) is a running-account agreement while the other part (the £20,000 loan) is a fixed-sum credit agreement. The second (Case B) is that one part of it (covering £12,000 of the credit advanced) is, as argued in the Comment appended to the CCLR report of the case, a restricted-use credit agreement (being a refinancing agreement falling within section 11(1)©), whereas the remainder is an unrestricted-use credit agreement. Section 18(2) then requires each part to be treated as a separate agreement.

 

In Case A this means that the £15,000 overdraft is a separate running-account agreement while the remainder is a separate fixed-sum credit agreement for £20,000. This is of no significance since overdraft facilities are excepted from having to comply with the documentation requirements of the Act.

 

In Case B section 18(2) means that one deemed agreement is a £12,000 restricted-use credit agreement while the other is an unrestricted-use credit agreement for £23,000. This is significant, because the first agreement is within the Act’s £15,000 limit. However it is not clear on the facts whether the refinancing was intended to be effected by way of the first or the second agreement in Case A (or through a mixture of the two). Section 18(4) is then brought into play in relation Case B. It runs as follows-

 

‘Where under subsection (2) a part of a multiple agreement is to be treated as a separate agreement, the multiple agreement shall (with any necessary modifications) be construed accordingly; and any sum payable under the multiple agreement, if not apportioned by the parties, shall for the purposes of proceedings in any court relating to the multiple agreement be apportioned by the court as may be requisite.’

 

This means that the overall agreement must be treated with any necessary modifications as if it were two agreements, one a £12,000 refinancing agreement and the other an agreement for £23,000 which is not refinancing. Any sum payable under the overall agreement (by the debtors or the creditor) was required to be apportioned by the court as may be requisite.

 

By the time the case came to court it would have been clear (though it is not clear from the judgment of Auld LJ) exactly how the £12,000 had in fact been handled by the bank. It would certainly have been held back from the £35,000 borrowing. It would have been held back from drawings under the overdraft, or from drawings on the loan, or partly as to one and partly as to the other. It is submitted that the court’s apportionment under section 18(4) should have been made accordingly. If the entire holdback was from the overdraft then the documentation requirements of the Act would not bite because the £12,000 refinancing agreement would have been entirely by an overdraft excepted from those requirements. If the entire holdback was from the £20,000 loan then the loan agreement would fall to be treated as two regulated agreements, one a restricted-use credit agreement for £12,000 and one an unrestricted use credit agreement for £8,000. If it was partly the one and partly the other the result would depend on how it was divided.

 

In short, if it is discontinued by the bank, in writing during the normal course of business, or they just feel like it, then they can do that by just letteing you know that the facility is withdrawn.

 

However, from what I have read, I believe that if you default on the overdraft and that becomes the reason for the bank withdrawing the overdraft facilities, then s87-88 comes into play and they need to issue a default notice.

 

It is very complicated though and would need checking with an expert.

[Martel]

Hi Vint,

 

Great to hear from you - and thank you for the very informed post. All the legalese does make my head swim a bit so double thanks interpreting it all.

 

The second notice that was sent to me, which I consider to be the official TN, states it is 'given in compliance with the CCA 1974 BECAUSE YOU HAVE FAILED TO MAKE REQUIRED PAYMENTS'. So, even though the OD originally merely expired, the Bank terminated it because I failed to make 'required payments' -i.e., I defaulted.

 

The solicitors seem to think a DN is necessary, too, as they've attached one to their Defence. Only, it's a DN for ANOTHER account. And, for some reason, the Defence only includes the 'warning letter' about the impending TN, which says it is served under Sections 76(1) ad 98(1) of the CCA 1974 and gives me 21 days to pay. The Defence DOES NOT include the actual TN (the one I have is the original from my file).

 

In reference to the last few lines of your post, I am almost 100% certain that a DN on this acc't does not exist. It's not in my files and it's never been sent to me in any responses to my SAR.

 

I find it so weird that the CCA is referred to on the pre TN and TN, yet the solicitors have advised me (in a letter a while ago) to withdraw references to the CCA in my Defence....as the OD is exempt from the CCA. So, why do they feel the need to include a DN (clearly overlooking the fact that it's for the WRONG account)? I would think that the CCA would come into play here....but what do i know?!

 

Again, enourmous thanks for all your help!

 

MX

[Martel]

The last time the OD was extended was June 2008 - the T&Cs enclosed in the Amended Defence are dated 1st January 2010.

 

Aren't the solicitors obliged to provide T&Cs from the date of the renewal of the OD? In the amended POCs, they merely state 'a copy of the T&Cs are attached to these POCs'.

 

Thanks in advance to whoever can help!! X

[Martel]

re the above post......I've again found something in my files that, after reexamination, may be the T&Cs in force at the time of my OD extension. they were sent to me by the Bank in response to my SAR. The Bank claims they were in place when the acc't was passed to recoveries until Feb 2009 (though who knows if they were in force in June 2008???).

 

RE ODs, the T&Cs state : 'Repayment of your OD - We can demand repayment of your OD by giving your written notice at any time. If we do so, you must immediately repay the full amount of your OD.'

 

Can't find anything else!!

[vint1954]

The last time the OD was extended was June 2008 - the T&Cs enclosed in the Amended Defence are dated 1st January 2010.

 

Aren't the solicitors obliged to provide T&Cs from the date of the renewal of the OD? In the amended POCs, they merely state 'a copy of the T&Cs are attached to these POCs'.

 

Thanks in advance to whoever can help!! X

They need to provide the T&C's from when the overdraft was taken out and at aevery change to the conditions thereafter.

[Martel]

Vint,

 

Thanks for this.

 

In response to my SAR and CPRs, the Bank sent me the (alleged) T&Cs from when the acc't was opened (and T&Cs dated two years later) and T&Cs from when the acc't was transferred to the Recovery department. None of these were ever sent to me by the solicitors. Even tho the dates of some of these T&Cs are not proven, the fact is the Amended Defence is relying on T&Cs dated 2010.

 

I'm getting a little panicky as I have to file my Amended Defence a week from tomorrow.

 

I am supposing two points of my argument will be: 1. The DN provided relates to another account entirely (I've not been sent one in response to my SAR or CPRs and I don't have one in my file so it's unlikely that one exists - or can the Bank merely make one up??) 2. The T&Cs relied on in the Amended Defence are irrelevant as they are neither the ones originally issued when the account was opened or when it was terminated

 

I just don't have the legal vocabulary to work this up into my Amended Defence and I'm not sure how to make the CCA 1974 work to my advantage here.

 

I'm supposing I should leave the issue of shocking amount of charges on the account out of this - or maybe not?

 

Many thanks for all the help so far and any other forthcoming!

 

MX

[Martel]

Though i hate bumping, am doing so as i have to come up with an Amended Defence this week.

 

MXX

[citizenB]

Martel/Magda,

 

I will flag your SOS for car2403. He is the only one I can think of that may be able to help.

[citizenB]

Martel, I have sent car2403 an S.O.S and also flagged your reported post for some help.

 

Could you please post a summary of your case, bring forward any information that you think may help Car to help you. He has been away from the site for a while so this will make it easier for him if he is able to assist.

[Martel]

CB! I can't thank you enough! i will post a precis of the situation.

 

MXX

[Martel]

Here is the Defence I filed:

Defence

 

1. I, XXXXX 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.

 

Cobbetts solicitors send me a letter, noting that my Defence refers to the CCA 1974 and advising me ‘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.’

The Court issues a General form of Judgment or Order, requiring the Claimant serve a fully pleaded claim.

Cobbetts Solcitors files an Amended Particulars of Claim:

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

 

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 T&Cs attached are dated 1/1/10 –(the account ended in 2009) . These T&Cs don't match up with any T&Cs that have been sent to me in the last few months by the Bank.

 

They also say in the POC that they've attached a copy of a DN BUT it's for a LOAN ACCOUNT 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 2 other docs: a letter from the Bank stating: ‘Please note that unless you make satisfactory payment arrangements with the Bank in response to the attached notice, we hereby give you 28 days notice that info may be given about your indebtedness to the following CRAs………’ AND Notice served under Sections 76(1) and 98(1) of the CCA 1974, stating ‘your OD is repayable on demand being made by the Bank; and such demand will terminate the OD arrangement on or after XXXXX unless by that date you have made an alternative arrangement for repayment which is acceptable to the Bank.’ It lists the Principal, interest to date and total outstanding. The final para says ‘This notice should include a copy of the OFT info sheet on default….’

 

 

I’ve NEVER been sent a DN on this account – not in response to my SAR or CPRs and there isn’t one in my (extensive) file. I believe the Bank erred here – they were issuing a lot of docs listing both the loan account and the OD account and I am 99% sure a DN for the OD does not exist.

In response to my CCA request, Incasso sent me a copy of the Bank’s letter to me, confirming the last extension on the OD, which mentions a reference to T&Cs that applied to the acc’t then and list ‘additional terms’. This letter was not included in the Amended POCs.

In my ‘originals’ file, I have several other letters – copies of which have ever been sent to me by the Bank or the solicitors, so perhaps they don’t actually have them. One is dated 7 weeks and 2 days AFTER the Notice included in the Amended POCs (as above). It states: ‘This Notice is given in compliance with the CCA 1974 because you have failed to make required payments……Terminate OD on Acc’t number XXXX…If you have difficulties repaying your OD, please contact……Details of your last two missed or not fully paid payments: Nature of Payment: Formal Demand Expiry (the date is 8 days prior to the date on this letter), plus Interest.

[Martel]

Sorry if the above post is clunky - I meant to edit it before posting but it ran away from me!!

 

I'm sure there's masses more of info required but think that gives the state of pla as it is now. I have to file my Amended Defence by next week.

[Martel]

And thank you to anyone who can help!!!

 

MXXX

[car2403]

I'm back! Ha, ha...

 

Anyway, I've multi-skimmed most of this thread and can't see what the question is. If you can post up what you need to know, I should (I say "should") be able to help

[Martel]

I've never been so happy to see a post in my life!!! Car, thank you so much!

 

The question is really.....how best to compose an Amended Defence? Or, maybe the question is, is there a strong enough argument here?

 

I know that the DN in their Amended POC is irrelevant, as it relates to a completely different account. But the solicitors must think a DN is necessary - which means they think the OD is under the CCA? I don't really know what I'm talking about but if they're operating under the CCA, doesn't the Bank need to issue a DN before terminating? And, can they magic one up?

 

Also, the T&Cs don't seem relevant as they're for an entirely different year.

 

With Magda's help, I'm trying to put this puzzle together - I'm grasping some of the argument but (obviously) lack the legal expertise to put the Amended Defence into context for Court.

 

In a case of the worst timing EVER, am now about to be off line for a few hours (unbelievable). But I'll be around later and, indeed, for the rest of my life!!

 

Many, many thanks....MXX

[car2403]

TBH, there isn't an easy answer to your question. Sorry, but you'll need to do some more work yourself to a) understand the complicated issues at hand and b) be able to prepare your own defence. While it's easier for someone else to do some of the legwork for you, you will never understand your own case unless you do most (not all!) of the work yourself.

 

I notice you've not been referred to my thread, so here it is;

http://www.consumeractiongroup.co.uk/forum/barclays-bank/110184-car2403-barclays-bank-default.html

 

I've been through exactly the same thing you have, (although I was in reverse, with me suing them) so I know how complicated this is.

 

The best thing is to read through my thread and then come back her to ask any questions you have.

 

The amended defence looks good, but you'll see that there are more issues that you need to include in there.

[Martel]

TBH, there isn't an easy answer to your question. Sorry, but you'll need to do some more work yourself to a) understand the complicated issues at hand and b) be able to prepare your own defence. While it's easier for someone else to do some of the legwork for you, you will never understand your own case unless you do most (not all!) of the work yourself.

 

I notice you've not been referred to my thread, so here it is;

http://www.consumeractiongroup.co.uk/forum/barclays-bank/110184-car2403-barclays-bank-default.html

 

I've been through exactly the same thing you have, (although I was in reverse, with me suing them) so I know how complicated this is.

 

The best thing is to read through my thread and then come back her to ask any questions you have.

 

The amended defence looks good, but you'll see that there are more issues that you need to include in there.

 

Hi Car,

 

Thanks for your reply! I've read your thread several times (before the reality of my situation crystalized) and will re read now.

 

From reading other threads and the input on this one, I can grasp the thrust of potential argument.....the problem is that there seems to be such a variance of opinion. And I feel like my search of my files (vs the Bank's and solicitors' release of docs) is forensic but I lack the skills to conduct a full blown CSI.

 

Glad to know you approve of my Defence - it's not the Amended one but is the original one. Good to know it's headed in the right direction.

 

Again, thanks for posting - it's hugely appreciated!

 

Best,

M

[car2403]

Sorry, not with it this early doors - why is an amendment to your defence needed and when do you have until to submit it?

[Martel]

I need to submit an Amended Defence in reply to the Bank's Amended POCs. It needs to be filed by next Tuesday.

 

Magda has suggested 'but if I were you, I would perhaps try to draft something up today, concentrating on the two main issues as you do so: a) have they complied with part b of the dertermination by giving you notice at the start of the overdraft detailing all the relevant points such as interest rate etc and how to terminate the overdraft. and b) have they complied with part c of the determination by giving notice within 3 months and 7 days of the overdraft falling into problems (so from the point when extra interest/charges would have been added) and did they then default the account in the prescribed manner under sec. 87/88.

(we'll assume that is the correct procedure, as Nwest seem to think this)

Also add that you retain the right for equitable set off of any unfair charges (+ the interest they added to these charges) - you might have to read up a bit about this topic on the penalty charges forum as their are new tactics for claiming these back now since the supreme court ruling.'

 

I'd be v grateful for any advice you might have.

 

Many thanks!!

[car2403]

I need to submit an Amended Defence in reply to the Bank's Amended POCs. It needs to be filed by next Tuesday.

 

I'm going to struggle to help, in that case, as I have a very difficult personal situation at the minute - and I'm moving home tomorrow/this weekend and don't know if I can get online or spend any time assisting.

 

Magda has suggested 'but if I were you, I would perhaps try to draft something up today, concentrating on the two main issues as you do so: a) have they complied with part b of the dertermination by giving you notice at the start of the overdraft detailing all the relevant points such as interest rate etc and how to terminate the overdraft.

 

This seems a good idea - there's some POC you could use in my thread, if you have a looky through it.

 

and b) have they complied with part c of the determination by giving notice within 3 months and 7 days of the overdraft falling into problems (so from the point when extra interest/charges would have been added) and did they then default the account in the prescribed manner under sec. 87/88. (we'll assume that is the correct procedure, as Nwest seem to think this)

 

This seems more dubious to me? Where did s.87/s.88 come from? Remember that the OFT Determination states that they need to tell you how they intend to terminate the agreement, and that will most likely take the form of a s.98 CCA Termination Notice, I can't see how a Default Notice would be relevant?

 

Also add that you retain the right for equitable set off of any unfair charges (+ the interest they added to these charges) - you might have to read up a bit about this topic on the penalty charges forum as their are new tactics for claiming these back now since the supreme court ruling.'

 

Well, it's an interesting point, but for me, the charges issue needs to be put to one side - unless, you can show that they are unfair in your particular circumstances. We all know that pre-OFT test case, you'd be counterclaiming for these charges. Now, you're sort of on a hiding to nothing unless there is proven serious unfairness, because of the SCoJ's ruling.

 

I may be able to help out over the weekend, as I have a web application on my mobile phone (which I haven't tried with CAG yet, thinking about it!) or popping in during my lunch break on Monday. Just wish I was around more to lend a hand, but you seem to be on the right track, you just need your compass resetting!

[Martel]

Car! Thanks so much, double thanks considering you're moving. I really appreciate you taking your time.

 

This is just a quick acknowledgement - will act on it anon.

 

I read your thread again last night and extracted a lot of your formal legal statements - intend to review them again tonight and see what might merge with/support my argument (such as it is!!).

 

I think what's thrown me (and possibly Magda) is - after I file my Defence, the solicitors write to me to tell me the OD is not governed by the CCA and to remove CCA references from my Defence. Then, they feel the need to include a DN (admittedly a DN for another account entirely, under Section 87(1)) in their amended POCs. Why? I'm assuming maybe they're hedging their bets re the CCA by including what they think is a DN for the OD.

 

I am assuming that the 'Notice Served under Sections 76(1) and 98(1) of the CCA' that tells me my OD is repayable on demand within 21 days is the actual TN (I am awash with docs that sort of read like a TN but probably aren't).

 

What is curious to me is that they haven't included the letter confirming the OD when it was last extended. They sent it to me as a response to my CCA request.

 

Am assuming the T&Cs they're relying on are useless as they are for this year and the OD expired in 2008. Can I demand the correct T&Cs for this OD, whether they are they T&Cs when the acc't was set up or the OD last extended?

 

I think i may just calculate the charges and interest as an exercise - I mean, £8,000 since the OD expired seems proof of unfairness to me!! But I understand what you mean about their relevance to this argument here. I'm curious as to how much i was ripped off.

 

Arghh!! Sorry - I DID say this would be a quick post! Good luck with the move and thank you very much for being so generous with your knowledge...and for the reassuring advice to just reset my compass. Somehow, that makes things seem easier!!

 

MXX

[car2403]

Car! Thanks so much, double thanks considering you're moving. I really appreciate you taking your time.

 

NP.

 

I think what's thrown me (and possibly Magda) is - after I file my Defence, the solicitors write to me to tell me the OD is not governed by the CCA and to remove CCA references from my Defence. Then, they feel the need to include a DN (admittedly a DN for another account entirely, under Section 87(1)) in their amended POCs. Why? I'm assuming maybe they're hedging their bets re the CCA by including what they think is a DN for the OD.

 

Ah, the old "switch-a-roo" scenario. Yes, they may well try to mislead you in to believing that you don't have a claim/defence, but they may well be wrong. Ultimately, you could be up against these folks in Court, so you have to know your case inside, out, upside, down, back and forth. Ask yourself, though, if the letter (which they are yet to produce) setting out the terms of the OD agreement didn't state that a Default Notice is required to terminate the agreement, then why would they provide one?

 

I am assuming that the 'Notice Served under Sections 76(1) and 98(1) of the CCA' that tells me my OD is repayable on demand within 21 days is the actual TN (I am awash with docs that sort of read like a TN but probably aren't).

 

That's my opinion, yes.

 

What is curious to me is that they haven't included the letter confirming the OD when it was last extended. They sent it to me as a response to my CCA request.

 

Ok, so the issues are - in order of priority;

 

- enforceable debt; only if they can produce the facility letter

- correctly terminated; that'll be that TN, but only if that is what was laid out in the facility letter (which is why the facility letter is MORE important than the TN ;))

- treating customers fairly

 

Am assuming the T&Cs they're relying on are useless as they are for this year and the OD expired in 2008. Can I demand the correct T&Cs for this OD, whether they are they T&Cs when the acc't was set up or the OD last extended?

 

Not useless, but not useful. A judge may well decide (he'd have to be a numpty judge) that the current terms are enforceable, but I'd say that can only happen if the facility letter can be produced.

 

I think i may just calculate the charges and interest as an exercise - I mean, £8,000 since the OD expired seems proof of unfairness to me!! But I understand what you mean about their relevance to this argument here. I'm curious as to how much i was ripped off.

 

Sorry, but you're missing my point. Saying the charges are unfair and proving that (post-OFT test case) are 2 completely different challenges. Only proving the charges are unfair would stand up in Court - simply saying they aren't, wouldn't. Did the Bank mislead you in to taking the Overdraft out? Where you told of the interest rates you were going to be repaying? Was there a fraud or misrepresentation made when you entered the agreement? Proving these things will be difficult, so should be avoided, IMHO. Unenforceable debt first, unfair debt second. If you were arguing unfairness alone, I'd be telling you to withdraw, discontinue and settle the debt at an affordable rate. That's my opinion, other's have theirs and we're all entitled to one - only you can decide how to progress, however.

[Martel]

Major thanks, Car....

 

Amazing, what an incisive mind. Total opposite of mine!!

 

Thanks for the clarity re charges. Understood.

 

Ok, there IS a facility letter ''This is an important doc which sets out the T&Cs of your OD facility. Pls note that ODs are repayable on demand. We recommend that you take independent legal advice if you have any doubts regarding the T&Cs of the facility." It includes the limit, review date, etc.

 

OD T&Cs - your attention is drawn to the t&cs applying to the Facility Acc't as they relate to the availability of an OD facility on the acc't. The acc't T&Cs apply to the OD facility and were supplied to you when the acc't was opened or when they were last changed by us. A Further copy of the T&Cs is available on request. The following additional T&Cs apply to this OD facility. where the additional terms differ from those in the acc't T&Cs, the additional terms replace the the account T&Cs.

 

You are responsible for repayment of any debt or other obligation owed to us. For joint accounts....etc.

 

Additional Terms

The OD Limit will be available until the Review Date or until we provide written notice that we have withdrawn or restricted your right to use the OD Limit and/or have demanded immediate repayment of any OD balance on the Facility Acc't, if earlier. We will review the OD Limit on the Review Date and may extend the Review Date by agreement with you.

The enclosed leaflet 'Personal and Private Banking - A Guide to Fees and Interest' details:-

A. the interest rate(s) you pay on the daily cleared OD balance on the Facility acc't

We will tell you in advance the amt. of interest you will have to pay, the period over which interest has been calculated, and when the interest will be applied. Unless otherwise agreed, interest will be debited to the Facility Acc't."

B. any Arrangement Fee payable. We will debit.....

C. the charges you pay if an unarranged OD arise on the Facility Acc't due to the OD Limit being exceeded

If we have a valid reason for doing so, we may change these T&Cs. if we do, we will notify you personally either before the change comes into effect or at the earliest opportunity afterwards.

We may treat any usage by you of the facility as your acceptance (without amendment) of these T&Cs."

 

So...no mention of the TN or a DN....or, obviously, the CCA - but lots of references to the T&Cs at the time....which I don't, technically, have access to.

 

So, since the previous solicitors sent this to me, why isn't it included in the Amended POCs? It either doesn't work in the Claimant's favour or they've overlooked it. OR they'll spring on me later.

 

The TN is dated 2 months and 10 days after the OD expired (tho it limped for awhile after and the bank continued to pay cheques and DDs).

 

Grrr.....this is still not taking shape for me yet. I feel like the solicitors are gaslighting me. Is there a method in their madness? Answers beget more questions. Am going back to the info I extracted from your thread.

 

Enormous thanks - am so v grateful!!

 

MX

[Martel]

My brain jammed trying to assimilate all the stimuli re an Amended Defence.

 

So, as a displacement activity, I added up the charges and interest over the life of the acc't., about 10 years. Charges, about £8,000. Interest, about £15,000. Eye watering.