Are overdrafts covered by cca's

[Gaznkaz08]

well 2 replies today from DLC dated yesterday offering us a 10% discount off both balances if we switch to DD payments, no mention anywhere of my cca request that i know they received on the 11th

[themagician]

well 2 replies today from DLC dated yesterday offering us a 10% discount off both balances if we switch to DD payments, no mention anywhere of my cca request that i know they received on the 11th

time now to put your feet up and wait for the posty to deliver the drivel they are going to send as to why they cannot send you the cca original,or they will tell you the earth is flat !!!

[Gaznkaz08]

had dlc on the phone today apparently they have no record of both our CCA requests even though i have proof of delivery well before xmas, but the £1 p/o's haven't been cashed, what happens next?

Edited January 12, 2010 by Gaznkaz08

[jon888999]

had dlc on the phone today apparently they have no record of both our CCA requests even though i have proof of delivery, but the £1 p/o's haven't been cashed, what happens next?

 

Well they've defaulted on the CCA request, you can prove they've recieved it so send

the Dispute letter + No telephone letter.

Never talk to these idiots on the phone, refuse to answer the security questions, just keep repeating written communication only.

 

If you can change your phone numbers and be really careful who you give it to.

 

Send them a version of this, I normally use email.

[email protected], [email protected] [email protected], [email protected]

[email protected]

 

Account In Dispute

 

Dear Sir/Madam

 

 

 

You have failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement for the above account.

 

On 11th February 2009 I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8. A copy of which is enclosed for your perusal and ease of reference.

This request was signed for by you on Tuesday 17th February. Signed proof of delivery is available.

You have failed to comply with my request, and as such the account entered default on 6th of March 2009.

 

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document.In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.

 

Furthermore

You are aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be carried out before your client enters into a default situation.

 

This limit has expired.

 

As you are no doubt aware section 77(6) states:

 

If the creditor fails to comply with Subsection (1)

 

(a) He is not entitled , while the default continues, to enforce the agreement.

 

Therefore this account has become unenforceable at law.

 

As you have Failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, Failed to send a full statement of the account and Failed to provide any of the documentation requested.

 

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

 

Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

 

Please note you may also consider this letter as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect.

 

This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.

 

Should you refuse to comply, you must within 14 days provide me with a detailed breakdown of your reasoning behind continuing to process my data.

 

It is not sufficient to simply state that you have a ‘legal right’; You must outline your reasoning in this matter and state upon which legislation this reasoning depends.

 

Should you not respond within 14 days I expect that this means you agree to remove all such data.

 

Furthermore you should be aware that a creditor is not permitted to take ANY Action against an account whilst it remains in dispute.

 

The lack of a credit agreement is a very clear dispute and as such the following applies.

 

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.

* You may not add further interest or any charges to the account.

* You may not pass the account to a third party.

* You may not register any information in respect of the account with any credit reference agency.

* You may not issue a default notice related to the account.

 

 

I reserve the right to report your actions to any such regulatory authorities as I see fit.

 

You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint.

 

I would appreciate your due diligence in this matter.

 

I look forward to hearing from you in writing.

 

Yours faithfully

[Gaznkaz08]

dispute letters were signed for this morning just printing off the confirmation

 

i quite enjoy talking to them on the phone:D

[Abby25]

Hi,

Glad I've found this thread - Nwide have asked for me to repay 1/2 my od - which amounts to a few £1,000 - by 25 Jan - so anticipating joining the merry band - if thats ok!

[mills1]

Subbing for future reference

[stupidboy]

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.

 

Hi Hungrybear,

 

I had a "not covered by the CCA" letter over a year ago now, and have been paying a small amount every month since. They've been charging more interest than I pay every month, obviously.

 

They've now sent an enforcement notice under s76(1) of the CCA so I would really appreciate seeing the letter that you refer to above.

 

Cheers,

 

Stupidboy

[emandcole]

Why do banks use Enforcement Notices for current accounts/overdrafts but all other creditors use Default Notices?

 

Do they have exactly the same requirements as I had one a while back for an old charge stricken account I stopped using as it became too much hassle.

 

Seems the bank involved has woken up to default notices being invalidated due to incorrect 14 days clear to remedy as this enforcement notice effectively allowed 18 days...seems they are capable of learning then

 

They didn't like me suddenly not paying anytihng into it as I'd had enough of them and now they've closed the account, very spiteful me thinks .

 

They did this three months ago and I've only just found out as Moorcroft are sending the usual nonsense out. No termination, no courtesy letter at all!

[stupidboy]

bump!

[stupidboy]

bump again - I do need some help here, folks!

[stupidboy]

last bump, I guess - is there no help?

[citizenB]

Ummm, what's the question ?

[the_shadow]

StupidBoy...

 

I got this off of a thread about overdrafts but I cant remember who's post I pinched it from... sorry mr anon...

 

WooooooooooW up a bit here.

 

An overdraft is a debtor creditor agreement as defined under section 8 and 13 of the CCA and is running account credit as defined in section 10. This has high court case law - coutts vs sebastyn.

 

When they say it is not CCA, what they mean is that there is part v exemption from the CCA but,

-they still need to show the contractual arrangement set up with 30 days of the o/d

-they still need a valid default notice

-they still need a termination notice.

 

A current account is covered by the banking code (FSA) and does not offer credit facilities. An overdraft is a credit agreement and as such CCA.

 

This is my specialist area I've seen off HSBC and LTSB on this. They will try to tell you that CCA does not apply to an o/d this utter nonsense. What tehy mean is that they have the part v exemption. So a SAR requesting specifically the default and termination notices plus the letter they sent you within 30 days of setting up the o/d (which must include interest rate and conditions such as limit) will tell you if they can enforce it. But I would still start with a CCA for the o/d it is for them to prove part v exemption.

 

A CCA request applies to an overdraft until and unless they tell you in writing that it is Part V exempt. At that point they must provide all the documents under the determination for the overdraft to be enforceable else section 78(6) of the CCA applies.

 

 

LEGAL BIT

8. The Claimant believes that it will form part of the Defendant’s Defence to this Claim that this agreement is not a regulated agreement under the CCA 1974. The Claimant 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;

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."

 

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

 

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

 

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

11.1. 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;

11.2. 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;

11.3. 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)

 

hth

 

S.

[panther12]

Regarding an overdraft with natwest, we sent a CCA request and received this back. Had resided to the fact this had to be paid but having just seen this thread I'm now not sure! Would really like to take things further with Natwest as they have been horrible.

--------------------------

I refere to your correspondance regarding the above Act.

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

* a copy of a signed agreement (if any)

* any other document referred to in the agreement

* a note of the state of the account (i.e.the balance, details of interest and charges outstanding and the applicable interest rate) signed by a representative of the bank.

 

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

 

All borrowing facilities are agreed in accordance with the terms and conditions of your account, and overdraft facilities are finalised by way of confirmation letter. Each time your limit was amended, in accordance with the Bank's standard practice, a confirmation letter would have been sent to you advising you of the new limit and any additional terms and conditions applicable.

 

Please find enclosed a sample letter similar to that which would have been sent to you to confirm the overdraft facility applicable to your account. I can confirm as at today's date, the following is relevant to your account:

 

Agreed overdraft limit

current account balance

Interest rate applicable on arranged facility

Nominated monthly rate (Debit interest)

Nominated Annual Rate (Debit interest)

Effective Annual rate (EAR)

[the_shadow]

Regarding an overdraft with natwest, we sent a CCA request and received this back. Had resided to the fact this had to

Please find enclosed a sample letter similar to that which would have been sent to you to confirm the overdraft facility applicable to your account. I can confirm as at today's date, the following is relevant to your account:

 

Agreed overdraft limit

current account balance

Interest rate applicable on arranged facility

Nominated monthly rate (Debit interest)

Nominated Annual Rate (Debit interest)

Effective Annual rate (EAR)

 

 

Sample letter ;-) they dont keep the originals then?

 

S.

[citizenB]

Sample letter ;-) they dont keep the originals then?

 

S.

 

Without which of course, then we have to rely on their "integrity" that this WOULD have been sent to you ?

[the_shadow]

Without which of course, then we have to rely on their "integrity" that this WOULD have been sent to you ?

 

Integrity... bank.... Integrity....bank.... no sorry they just dont go together ;-D

 

S.

[emandcole]

Some really enlightening stuff there. Interested to read also that all of this overdraft malarkey would have been detailed in your account terms and conditions.

 

Lloyds are asking me to re-pay an overdraft of less than £1700. Had a letter this morning confirming they no longer have the original terms and conditions applicable to my account on opening as it's too old.

 

Considering they've added 'service costs' of over £3000 in the last six years when I was a mature student (kick em' whilst they're down type banking) I find their request for me to pay them back pretty annoying.

 

So, given the fact that my situation is a replica of thousands of similar situations in the U.K. how do the banks justify their hold on your credit file when there is no proof you even agreed to all of this?

 

Think I feel the need for a SAR coming on.

[Midas029]

subbing

[discod]

oooh im loving this thread.Had an 1800 overdraft with Abbey,lost job now the overdraft is nearly 2200 because of interest and have been served a default notice.

CCA them for the overdraft and come back for advice if I receive letter within time scale ????

I think I love you guys :grin::grin:

[stupidboy]

Thanks for this chaps - letter off to **** today.

 

I'll let you know how it goes.

 

stupidboy

[Gaznkaz08]

sorry been quiet on this thread as nothing has happened till today, CCA'd DLC re 2 accounts and got a reply from hillesden securities:?

 

 

that all i've got so far, funny thing is i'm don't think they even now what the debt is

[Abby25]

Hope ok to join the gang on the this one ...

I have a odraft with Nwide for quite a few pennies ... they have now decided that they are cutting the authorised od by half ... and gave me 3 weeks to repay the required balance, which isn't a small amount ..

The od limit has increased steadily by them over the years, never by my signing of anything, but it is only in the last year I have had to use it (long story), my account is over 20 yrs old.

They have reduced it as they say I have exceeded my limit, which was only temporary and wholly down to their charges for bounced ddms .. and then because it took me over my official od limit, then added more fees for exceeding it ..

I have stopped my salary from this month going into this account, as otherwise I would have nothing to pay mge etc, so no doubt they will now want the lot back ... already receiving numerous phone calls a day, starting a 8am and finishing at 9pm ... I don't answer, and they dont leave a msg but I know its their number.

Have read this fab thread, but wondered it I could ask how you guys would play this one .... ?

[emandcole]

Hi Gaznkaz,

Quick question. What year is this Barclaycard agreement from...if you can even recall?!