Are overdrafts covered by cca's

[Gaznkaz08]

As above if i'm being chased by a DCA for money that is basically charges applied and over an agreed overdraft limit, is an overdraft a form of credit that would be covered by a cca or simliar

[Big_Bother!]

Unfortunately no!

[Big_Bother!]

But you could do a SAR request (costs £10) to see all the information they have on you. This should give details of charges applied etc. May be worth a tenner?

[Gaznkaz08]

Unfortunately no!

 

 

oh well worth a thought

[jon888999]

Unfortunately no!

 

Have a good look on here as there are some threads where people have successfully argued that the CCA dos apply to credit cards. See my thread.

Template to request CCA for Overdraft[/u].

 

I don't think it's as simple as yes or no.

[Gaznkaz08]

Have a good look on here as there are some threads where people have successfully argued that the CCA dos apply to credit cards. See my thread.

Template to request CCA for Overdraft[/u].

 

I don't think it's as simple as yes or no.

 

links not working mate, do you mean argued overdrafts not credit cards?

[Gaznkaz08]

right done a lot of reading on the site regarding this and it seems od's are subject to some parts of the cca act

 

is there a template anywhere along the lines of "this debt is an overdraft and as such covered by" sort of thing

[BiGaD09]

I am in a similar situation to you with Sharkleys who claim I owe them £2000 on an agreed overdraft. I politely asked them to prove it so they kindly passed it on to a DCA (RMA). I then CCA'd them and have heard nothing since and no further action taken (been nearly a month), so I'm assuming that even if the act doesn't apply to overdrafts some (or most) of the DCA's don't know it.

 

 

Furthermore I am thinking they would have a hard time proving liability, the overdraft was applied via online banking so I have never signed an agreement. In essence I think the best advice I can give is put the onus on them to prove liability on your part and tell them to p**s off if they demand that you prove how you are not liable (as they will probably try!)

[jon888999]

links not working mate, do you mean argued overdrafts not credit cards?

Try this one

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/235647-template-request-cca-overdraft.html

if not cut & paste it in.

[Gaznkaz08]

i've actually had a stab at knocking my own up would like as much input as possible if this would be any good or as it my first attempt, it's a load of unusable nonsense, lol

 

RE account :

 

With reference to the above account, as this debt entirely consists of an overdraft for a

current account it does infact fall under a debtor-creditor agreement within the meaning of s.8 and s.13© of the Consumer Credit Act 1974, as demonstrated in the case of

Coutts v Sebastyen 14th april 2005

I would like to draw your attention to the following

“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.

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;

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."

 

1. Therefore I ask you to supply a true signed copy of the agreement under the legislation contained within s.78 (1) Consumer Credit Act 1974 (s.77 (1) for rolling sum credit) - your obligation also extends to providing a statement of account. I enclose a £1 postal order in payment of the statutory fee.,.this must be supplied within 12 working days.

2. . You are notified that you are obliged to supply these documents, whether you are the original creditor or not under S189 of the CCA 1974

3. Non-compliance with my request is a criminal offence under the above Act and will result in a report being submitted to the relevant statutory authorities

4. As you are aware, a credit agreement that is not properly documented and signed by the customer is totally unenforceable under the CCA and therefore is a complete defence to any court claim that is issued.

5. Furthermore you are reminded that under s78 sub section (6) whilst the default continues you are not entitled to enforce the agreement in law.

I look forward to your timely response regarding this matter

[mandyjayne]

Hi, just read this post on another thread...thought id post here, may help

 

regards Mj:)

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/236962-lowell-financial-saying-i.html#post2628952

[hungrybear]

Unfortunately no!

 

 

110% wrong.

 

section 10 cca - with high court ruling clarification to prove it

[hungrybear]

i've actually had a stab at knocking my own up would like as much input as possible if this would be any good or as it my first attempt, it's a load of unusable nonsense, lol

 

 

 

no need to go to all that arse gaz. Just send a standard cca request. It's not for you to educate them. It is for them to tell you that part v of the act, form and content - which include section 78, does not apply to an od.

 

remember that at this stage the staff you are dealing with have all the legal training of a mellon - and there you are offering to educate them for free in a single letter - let them earn it one step at a time.

 

Once their heads stop spinning round and they come baqck with 'this is an od and is not covered by the cca' then let me know as I have the perfect gift of a letter for them in response.

 

and FYI you got the laws pretty much spot on

Edited December 7, 2009 by hungrybear

[Gaznkaz08]

no need to go to all that arse gaz. Just send a standard cca request.

 

 

Really? what and keep the case history for when they start arguing?

[Gaznkaz08]

has anyone successfully pulled off a CCA request on overdraft debts

 

the wife is getting windy again, lol

[hungrybear]

Really? what and keep the case history for when they start arguing?

 

 

you want to find out their side of the story and what legal tack they think they can take. With your letter you are backing them into an alley and saying 'go on then'.

 

slowly slowly catchy moron (or monkey or whatever:p)

[Gaznkaz08]

you want to find out their side of the story and what legal tack they think they can take. With your letter you are backing them into an alley and saying 'go on then'.

 

slowly slowly catchy moron (or monkey or whatever:p)

 

 

cool printing 2 cca's as we speak, should be interesting fighting 2 simultaneously

[hungrybear]

has anyone successfully pulled off a CCA request on overdraft debts

 

the wife is getting windy again, lol

 

yes I have twice - hsbc (crapquest), lloyds (1st). Both are still in dispute after a couple of letters and I have heard nowt from either since Feb 2009.

 

I walk my talk:D:p:rolleyes:

[Gaznkaz08]

 

Once their heads stop spinning round and they come baqck with 'this is an od and is not covered by the cca' then let me know as I have the perfect gift of a letter for them in response.

 

I will do, you've been a great help

 

and FYI you got the laws pretty much spot on

 

not bad for a first attempt then, lol

 

 

[Gaznkaz08]

just posted in this thread as it relates to the DCA

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/237089-dlc-snooping-around-advice.html

 

i have a notice of assignment, does this affect a CCA request?

[hungrybear]

just posted in this thread as it relates to the DCA

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/237089-dlc-snooping-around-advice.html

 

i have a notice of assignment, does this affect a CCA request?

 

No - but there may be milage in the noa as we go, depending on shall we say ' how authentic it is'

[3tea]

GaznKaz,

 

Have you had a default notice for the overdraft?

 

If so, what Section of the Consumer Credit Act 1974 is it, and on what date did you get it?

 

How much was claimed on the default notice? The amount you were overlimit by, or the whole lot?

 

I am a bit further down the line than you with the Halifax who have stuffed up BIG STYLE, so it may be good news if you can answer the above questions.

 

By the way, overdrafts DO fall under the CCA 1974 as they are a regulated credit agreement.

 

The only part of the CCA that they are exempt from is Part V which deals with the 'making of the agreement' ie an actual written credit agreement.

 

An overdraft does not need a credit agreement like a loan or a credit card as in can be arranged over the phone or online etc.

 

However, an this is the best bit:

 

If you go over your limit say by a bank charge being applied, or the bank choosing to pay a direct debit even though insufficient overdraft was left to service the payment, the bank have given a 'tacit' agreement to provide the overdraft.

 

In these circumstances, they would write to you and ask you to pay enough in to bring your overdraft back within it's limit.

 

If you don't do this, what usually happens is that you are issued with a default notice under Section 87(1) of the CCA 1974, where they require you to pay enough in or else.......

 

If this situation remains as it is, then within a period of three months and one week the bank is supposed to write to you informing you of the annual rate of interst for the debt.

 

If they don't do this, then they lose the right of protection of Part V of the CCA and now need a credit agreement, which of course they have not got, cos you never signed one!!!!

 

No credit agreement=potentially not enforcible.

 

If you read the lengthy post above which goes on about The Determination, it's all in there.

 

If you can answer the questions I posed above, then I may be able to help further.

 

Regards,

 

3tea

[hungrybear]

3tea, I would say you are 90% right because

 

there still needs to be an agreement whether you have gone over limit or not; if you go over limit them clearly there is a second issue - but that does not remove the need fro an initial agreement for the od. This should be as detailed in 2 of the determination.

 

I'm not sure what you mean by 'lose the protection of part v'. There is no legislation or case law that I am aware of that will bring an od within part v.

 

That said the important thing is that many will try a railroad you with 'an od is not cca' which ci the important bit.

 

Your no agreement = unenforceble is correct, but not just where there is a tacit agreement.

[Gaznkaz08]

GaznKaz,

 

Have you had a default notice for the overdraft?

 

If so, what Section of the Consumer Credit Act 1974 is it, and on what date did you get it?

 

How much was claimed on the default notice? The amount you were overlimit by, or the whole lot?

 

I am a bit further down the line than you with the Halifax who have stuffed up BIG STYLE, so it may be good news if you can answer the above questions.

 

By the way, overdrafts DO fall under the CCA 1974 as they are a regulated credit agreement.

 

The only part of the CCA that they are exempt from is Part V which deals with the 'making of the agreement' ie an actual written credit agreement.

 

An overdraft does not need a credit agreement like a loan or a credit card as in can be arranged over the phone or online etc.

 

However, an this is the best bit:

 

If you go over your limit say by a bank charge being applied, or the bank choosing to pay a direct debit even though insufficient overdraft was left to service the payment, the bank have given a 'tacit' agreement to provide the overdraft.

 

In these circumstances, they would write to you and ask you to pay enough in to bring your overdraft back within it's limit.

 

If you don't do this, what usually happens is that you are issued with a default notice under Section 87(1) of the CCA 1974, where they require you to pay enough in or else.......

 

If this situation remains as it is, then within a period of three months and one week the bank is supposed to write to you informing you of the annual rate of interst for the debt.

 

If they don't do this, then they lose the right of protection of Part V of the CCA and now need a credit agreement, which of course they have not got, cos you never signed one!!!!

 

No credit agreement=potentially not enforcible.

 

If you read the lengthy post above which goes on about The Determination, it's all in there.

 

If you can answer the questions I posed above, then I may be able to help further.

 

Regards,

 

3tea

 

don't think i have a default notice hanging about anywhere, the dca is after the lot i think the 250 agreed OD and another 600-800 worth of charges on top

 

can i slide a request for the default letter into my cca or would i be better with a full SAR?

 

as DLC say they now own the debt i take it they should have all this info ready to go

[Gaznkaz08]

No - but there may be milage in the noa as we go, depending on shall we say ' how authentic it is'

 

 

does it not look "kosha" then?