Are overdrafts covered by cca's

[sam tyler]

subbing

[hungrybear]

does it not look "kosha" then?

 

 

just stick with the cca for now. Remind me, has the od debt been sold to the dca?

[snowy101]

Subbing with great interest

[Gaznkaz08]

just stick with the cca for now. Remind me, has the od debt been sold to the dca?

 

yes it has.

[hungrybear]

In that case a DN would be very important, did you get one?

 

(just thinking ahead, see what the CCA brings back)

[Gaznkaz08]

In that case a DN would be very important, did you get one?

 

(just thinking ahead, see what the CCA brings back)

 

 

don't think so all we have is that letter of assignment and a letter from dlc saying they've bought it

 

 

so CCA's off tomorrow then?

Edited December 8, 2009 by Gaznkaz08

[themagician]

has anyone successfully pulled off a CCA request on overdraft debts

 

the wife is getting windy again, lol

just pat her back it worked when i was very young!!!

[Benni Bronx]

subbing with great interest

[3tea]

Hungrybear,

 

My information came from here and seems to make sense to me....

 

What do you think?

[3tea]

Hungrybear,

 

Sorry, pressed enter too early........

 

My information came from my original thread (link below) in particular post 13 which quotes some case law.

 

What do you reckon?

 

Regards,

 

3tea

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/217605-halifax-current-account-defective.html

 

Post 13# reproduced below

 

 

 

3tea,

 

First I would like to thank you as your post of a current HBOS default notice will be very useful to me in dealing with HBOS.

 

With regard to your question an overdraft is subject to the CCA 74. It is a regulated debtor-creditor agreement within the meaning of sections 8 and 13© of the Act, providing for 'running-account credit' within the meaning of section 10(1)(a) of the Act.

 

However, section 74 allows the OFT to exempt overdrafts from complying with Part V of the the act. Part V is sections 55-74 and deals with 'entry into credit agreements' in particular it covers sections 60-65 which deal with the form of the agreement and the prescribed terms. The exemption by the OFT is called a determination under section 74. This means that they do not need to have an agreement - It is arguable, but not tested in court, that if an agreement actually exists then the bank have to provide is as they are not exempted from section 78.

 

But for a bank to benefit from the determination the bank must have complied with the requirements of the determination about sending letters at the time that the overdraft was taken out. All of this is explained in the following Court of Appeal case:

 

Coutts & Co v Sebestyen [2005] EWCA Civ 473 (28 April 2005)

 

Particularly look at paragraphs 17-20.

 

In your case you may want to see if the letters sent by the bank when you exceeded the overdraft meet requirement © of the determination, because if my memory serves me correctly they do not include the interest rate required by the determination.

 

If they do not then the bank cannot rely on the determination for the amount you exceeded the overdraft limit by, and would require a full CCA for it - which of course they do not have.

 

This may make the DN invalid. There is a lively debate elsewhere as to how to respond to that.

 

Separately, as SX20 says, they have terminated the agreement early and unlawfully. Again there is a debate about how to respond.

 

Hope that helps

 

Dad

[Massamum]

subbing with great interest

[hungrybear]

Hungrybear,

 

Sorry, pressed enter too early........

 

My information came from my original thread (link below) in particular post 13 which quotes some case law.

 

What do you reckon?

 

Regards,

 

3tea

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/217605-halifax-current-account-defective.html

 

Post 13# reproduced below

 

 

 

3tea,

 

First I would like to thank you as your post of a current HBOS default notice will be very useful to me in dealing with HBOS.

 

With regard to your question an overdraft is subject to the CCA 74. It is a regulated debtor-creditor agreement within the meaning of sections 8 and 13© of the Act, providing for 'running-account credit' within the meaning of section 10(1)(a) of the Act.

 

However, section 74 allows the OFT to exempt overdrafts from complying with Part V of the the act. Part V is sections 55-74 and deals with 'entry into credit agreements' in particular it covers sections 60-65 which deal with the form of the agreement and the prescribed terms. The exemption by the OFT is called a determination under section 74. This means that they do not need to have an agreement - It is arguable, but not tested in court, that if an agreement actually exists then the bank have to provide is as they are not exempted from section 78.

 

But for a bank to benefit from the determination the bank must have complied with the requirements of the determination about sending letters at the time that the overdraft was taken out. All of this is explained in the following Court of Appeal case:

 

Coutts & Co v Sebestyen [2005] EWCA Civ 473 (28 April 2005)

 

Particularly look at paragraphs 17-20.

 

In your case you may want to see if the letters sent by the bank when you exceeded the overdraft meet requirement © of the determination, because if my memory serves me correctly they do not include the interest rate required by the determination.

 

If they do not then the bank cannot rely on the determination for the amount you exceeded the overdraft limit by, and would require a full CCA for it - which of course they do not have.

 

This may make the DN invalid. There is a lively debate elsewhere as to how to respond to that.

 

Separately, as SX20 says, they have terminated the agreement early and unlawfully. Again there is a debate about how to respond.

 

Hope that helps

 

Dad

 

I've forgotten, are we supposed to be agreeing or disagreeing on something:D?

 

Yes that's the bible of o/d's that I preach from when people try to say they are not regulated.

 

Are you suggesting that it's not proper to CCA request an OD? Well, I believe it is for 3 reasons - 1)technically a cca is perfectly correct until they come back and prove that they have got determination exemption - agreed they all have but that's not the point. 2) It dont half make their head hurt plus the response to the CCA is vital in deciding what to do next - some will come back with the part v exemption (thank you very much, so you have the letter then?) and some will try and say that the cca does not cover o/d's - brilliant! 1st and capquest BOTH came back with 'not covered by the cca' when I cca'd them. At which point I sent them the 78(6) dispute letter and they bogged off!

and 3) I like to wind 'em up

 

was it the cca that we disagreed on? I've slept since!

[3tea]

Hungrybear,

 

My way of thinking is that if the creditor does not comply with part c of the determination, ie: fails to provide the debtor with the annual rate of interest etc within 3 months and a week, then they lose the right for an overdraft to be exempt from Part V of the CCA 1974.

 

By not being exempt, then a credit agreement is then required I believe, and of course they don't have one.....

 

In my case, the Halifax defaulted me under Section 87(1) for being in breach of the terms and conditions, in that I went over my overdraft limit and failed to pay the overlimit amount back.

Or rather, they put me over my limit with a ludicrous £35 charge.

 

Several months down the track, all I have had are Albion DCA threatograms at a rate that surely must be solely responsible for de-forrestation somewhere in the world!

 

Halifax have not complied with the determination within the requisite period, and so I am applying for a credit agreement, even though I know they don't have one.

 

I've read this somewhere else on this forum, but can't find it at the moment!!

 

I wasn't disagreeing with you, I probably didn't explain myself too well.

 

As far as I can see, a bank is quite correct in refuting a request for a copy of an agreement for an overdraft as long as they have complied with all the requirements of Part V of the CCA 1974.

 

Stuff up on any part of Part V and an agreement is required.

 

Regards

 

3tea

Edited December 10, 2009 by 3tea

[hungrybear]

Hungrybear,

 

My way of thinking is that if the creditor does not comply with part c of the determination, ie: fails to provide the debtor with the annual rate of interest etc within 3 months and a week, then they lose the right for an overdraft to be exempt from Part V of the CCA 1974.

 

A credit agreement is then required I believe, and of course they don't have one.....

 

I've read this somewhere on this forum, but can't find it at the moment!!

 

I wasn't disagreeing with you, I probably didn't expain myself too well.

 

Regards

 

3tea

I've never heard that argument before. The letter IS the agreement. Therefore if there is no letter compliant with item 2 of the determination a//b/c as appropriate then there is no agreement. The exemption from part V is an exemption from 'form and content'; ie prescribed terms etc BUT it's not an exemption from having any kind of agreement. But the letter is most definately an agreement because it contains the terms of the lending - so yes if they aint got the letter then there is no agreement compliant with part V or not

 

For an older od the easiest way to fight it is often on the basis of no compliant DN.

 

I had some real fun with 1st. They wrote and told me that an od is not covered by the CCA - those words 3 times in the same letter. So I wrote back and asked them what laws governed the alleged lending and on what legal basis were they requesting repayment. The response was 'that is for you (me) to determine for yourself, now ring reigate 1-800-swivel and arrange payment'. Havent heard from them since:D.

 

It would be interesting to try though. Something like, you did not write within 3 months and take up the exemption to part v therfore part v applies. This may stand a good chance in the High Court etc but I'm not sure you could get a county court judge to be bothered to listen long enough to understand what you were saying. It is a win -win argument though. If the judge says no you cannot make part v apply you will have already established that there was no letter based agreement compliant with the determination so they are still screwed!

Edited December 10, 2009 by hungrybear

[Gaznkaz08]

well we're cca ing dlc today re 2 od debts we have. so this can be a progress thread

[hungrybear]

well we're cca ing dlc today re 2 od debts we have. so this can be a progress thread

 

It will be interesting to see the response.

 

s'pose you could ask them if they have any cheap crimbo turkeys whilst you're at it!:lol:

[Gaznkaz08]

It will be interesting to see the response.

 

s'pose you could ask them if they have any cheap crimbo turkeys whilst you're at it!:lol:

 

 

2 CCA's off today, i'm thinking the 8th of jan should be the expiry time for them with the xmas break

[hungrybear]

I havent worked it out. You take off christmas day and bank holidays and work out the 12+2 working days

[Gaznkaz08]

I havent worked it out. You take off christmas day and bank holidays and work out the 12+2 working days

 

 

oops, that'll be the 4th then

[Gaznkaz08]

just checking my credit file and noticed i have 2 defaulted accounts with hillesdean securities both listed as "Loans"

 

well if hillesdean are DLC as i've just found out, then why are they classed as loan accounts as these are the overdrafts

 

i've also got an entry on there for barclays " bank default"

 

now this says it was defaulted in Sept 04 and satisfied 27/11/04

 

but one of the entires for the DLC "loan" says it was defaulted on 27/11/04

 

why did barclays class it as satisfied?

 

thought you couldn't be defaulted twice and why is DLC's default the exact same day the bank classed it as satisfied?

[hungrybear]

just checking my credit file and noticed i have 2 defaulted accounts with hillesdean securities both listed as "Loans"

 

well if hillesdean are DLC as i've just found out, then why are they classed as loan accounts as these are the overdrafts

 

i've also got an entry on there for barclays " bank default"

 

now this says it was defaulted in Sept 04 and satisfied 27/11/04

 

but one of the entires for the DLC "loan" says it was defaulted on 27/11/04

 

why did barclays class it as satisfied?

 

thought you couldn't be defaulted twice and why is DLC's default the exact same day the bank classed it as satisfied?

 

 

welcome to the world of 'we are cra's so up yours'. It's a complex issue full of potential for letter tennis. Technically you can only be defaulted once and technically the dca has no authority to share your data with a third party. In reality fighting it is a nightmare. Have a look for surlyben's default removal method in the forums, that will give you a good insight into this can of worms

[Gaznkaz08]

welcome to the world of 'we are cra's so up yours'. It's a complex issue full of potential for letter tennis. Technically you can only be defaulted once and technically the dca has no authority to share your data with a third party. In reality fighting it is a nightmare. Have a look for surlyben's default removal method in the forums, that will give you a good insight into this can of worms

 

 

ok will have a butchers

 

My main concern is that the bank is saying it's satisfied, is that because dlc paid it off when they bought it?

[hungrybear]

ok will have a butchers

 

My main concern is that the bank is saying it's satisfied, is that because dlc paid it off when they bought it?

 

 

possibly, but who knows. This is all a self created gray area for the cra's who are businesses who, naturally, do what their customers say. However, the technicalities of the law are quite clear. It really is a case of them getting away with the 'normal' practices so long that I think they have forgotten what laws they are breaching.

[Gaznkaz08]

well the 4th has been and gone, account in dispute letters away!!!

[alias barneyrubble]

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