Are overdrafts covered by cca's

[babble]

Re: Post Number 91:

 

I don't know your situation in full but I believe that the final say on the matter is that under section 127 of the Consumer Credit Act 1974 a court is barred from making an order if a properly executed agreement does not exist. Therefore without a document that complies with the said Act being presented to the court, the court can not enforce an alleged debt.

 

I think the part of the Act that you are quoting from is where the creditor has defaulted or breached a statutory request (section 77-79 of CCA 1974) for the supply of the properly executed agreement and then suddenly finds one. In this case they have to get a court order to make the agreement binding again as once they have defaulted on the request the agreement is no longer binding....although they usually try to argue that this is not the case. I had cabot argue that the fact they defaulted and breached the statutory request really meant nothing at all.

 

They all seem to think that only certain parts of the law actually apply to them....ie they have rights but no responsibilities. This is why these Acts have been created and why the house of lords ruling (wilson I think) went against a creditor.

 

(In brief - because it is a massive document) It specifically stated that in the main part most people don't understand the complexities of consumer credit agreements and the law whereas organisations should do as they have the financial power to get specialist advice. In their (the Lords) view this gives companies an unfair advantage and as such, if organisations don't follow the law as stated (in their rush to make money - and yes it did more than intimate this) then it is at their risk because there is no protection for them if they don't comply.

 

I hope this helps and I'm sure there are other CAG members who have a much better understanding of it than I do but I think I have summarised the main points.

[angry cat]

BBC News - Bank overdraft charges face new legal attack

[babble]

To be honest GaznKaz I've not even bothered looking at the case. The paragraph where they admit they can't enforce it is the important one.

 

As I said, I've done a cca 1974 request and disputed the debt and told them I won't acknowledge it without the said agreement. They are just hoping that some people will fall for it.

 

I love it when these organisations use bluff and misinformation to try to confuse people into giving way. They all think they can pick and choose what parts of the law applies to them.

[mills1]

BBC News - Bank overdraft charges face new legal attack

 

That would not apply to england anyway if the claimant won? being that it is in scotland?

[babble]

Yes this is the legal point that I've been looking at. It seems that under the Consumert Credit Act we can as individuals take action. I bet the banks are getting a bit twitchy now!!!

[Gaznkaz08]

BBC News - Bank overdraft charges face new legal attack

 

 

so if a bank has closed it's files on your claim, could you file a completely new claim using this new angle???

[angry cat]

Yes!

[Gaznkaz08]

Yes!

 

 

even if you'd received part payment under a hardship claim?

[angry cat]

That would not apply to england anyway if the claimant won? being that it is in scotland?

 

Rubbish!

[angry cat]

This new argument is based on the Consumer Credit Act 2006;

fully implemented on 31 October 2008;

Unfair Relationships...

 

:

 

New claim

 

Despite opposition from the Bank of Scotland's barrister, Sheriff Baird allowed Ms Sharp to amend her legal claim in the light of the Supreme Court judgement.

 

Her lawyers put forward a new point, arguing that under a 2006 amendment to the Consumer Credit Act, there had been an unfair relationship between her and her bank, which was illegal.

 

The crux of her case was that it was unfair to have been charged £750 for running up an unauthorised overdraft because the charges had been used not only to deal with her, but also to subsidise the cost of the bank's free current account service to those of its customers who stayed in the black."

 

The OFT had not pursued this argument because it is one that is open only to individuals, not a regulator such as the OFT.

[Gaznkaz08]

so if it was amended in 2006 , would that affect charges that pre date 2006

[discod]

I have/had a 1800 overdraft,lost job and it is now nearly 3000 due to charges.

I followed someones lead from here and requested a CCA and this morning all I received back was a standard bank account application form and only had my partners signature on and not mine.

Cannot scan it as I can barely read it myself the print is that bad.

Is it enforceable? Can i request another copy that I can actually read??

[babble]

To Quote 'AngryCat' - Rubbish. The Consumer Credit Act is binding throughout the entire country regardless of where action has been brought. Although, English judges do tend to let the Scottish courts take a lead on these things and the Govan Law Centre (who assisted the person) is usually right on the ball. With this in mind there is no justifiable reason for a court in England not to proceed in the same manner.

 

I had been reading about this possible route of action and it seems that the banks have too judging by the amount of people they are suddenly chasing up.

 

I have not heard anything off my bank regading the charges case / overdraft when they won. However, all of a sudden I got a letter from their solictors demanding payment and although I contacted their solicitors to say I was going to go to the ombudsman and other things they were adamant that they were going to start proceedings on the Friday just passed. I believe that they are running scared and are desperately trying to get orders granted before this information is made wider and they have to defend themselves.

 

The most interesting part of this is the fact that the banks will have to provide evidence to the fact that the charges made against your account are completely in respect of costs borne. The onus is completely on them to show they are acting fairly and not on the consumer to prove the banks were not acting fairly. This is a whole new ball game because they will have to show their true costings or lose.

 

Anyway, back to my case. I am going to CCA the bank for both accounts they are claiming for. Obviously they will have to show there is a properly executed agreement in place to be able to proceed - although I think they'll try to bluff it. I think they will issue court proceedings as soon as they can, if they haven't already, but I'll just ask for the agreements as part of my CPR 18 request with the proviso that I can alter my defence if they actually have something. Another part of my defence will be the fact that what they claim I owe is completely made from charges which I dispute. Which is where I will ask them to show that there costs were exactly what I've been charged.

[Guest]

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[Bigdebtor]

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[Abby25]

Nationwide have just written to me, with an intended default notice, for over my "informal" overdraft ... is there such a thing? (my OD - which is noted as authorised on my online banking details, and for each time increased I received a letter confirming .. is for rather a large amount )

 

Initially they halved my OD - which I couldn't repay - so I stopped my salary going into my account so that I would have money to live on - and now without warning they have removed the lot .. following a doorstep visit yesterday ... (which thankfully I missed due to being out).#

 

I've sent a CCA letter for the OD on the account, but not had a reply yet - sending another today - is this the right way to go .... ?

 

Any advice?

 

Abs

[the_shadow]

Nationwide have just written to me, with an intended default notice, for over my "informal" overdraft ... is there such a thing? (my OD - which is noted as authorised on my online banking details, and for each time increased I received a letter confirming .. is for rather a large amount )

 

Initially they halved my OD - which I couldn't repay - so I stopped my salary going into my account so that I would have money to live on - and now without warning they have removed the lot .. following a doorstep visit yesterday ... (which thankfully I missed due to being out).#

 

I've sent a CCA letter for the OD on the account, but not had a reply yet - sending another today - is this the right way to go .... ?

 

Any advice?

 

Abs

 

One CCA s78 request is enough unless its two different accounts? and yes this is the way forward... wait for them to come back saying its not covered and then state yes it is... partially... and I demand sight of the legally required docs.

 

S.

[Bigdebtor]

Abby

 

There are sample letters in CAG to send re forbidding doorstep visits etc.

 

Also have you kept all the letters confirming the increases and did they halve the limit because you had been frequently "naughty" and had built up a lot of unfair charges? - or were you well within the then current limit before they halved it?

 

Do you have all statements, other correspondence etc.? If not do an SAR and get all the ammo you need to at least complain to FOS about their high handed treatment!

 

good luck

 

BD

[Abby25]

Hi all,

My OD agreement was withdrawn as they said they had reviewed my account, and as I had previously exceeded my OD limit (which was down to their charges) that they had elected to withdraw the facility.

The OD facility was authorised by them from day one, and I had the availability for along time before I had to use it ... in fact my account is over 20 yrs old.

I have letters when the OD facility was increased, without it actually being used to be fair, and in each one it says authorsied.

In fact the letter reducing the od in January, clearly states we are reducing your authorised OD facility ... so the "informal" reference in the default notice is confusing me slightly !!

 

My cca request contained the following paragraph to stop them trying to use "a bank account isn't regulated" line ...

 

"You will be aware that an overdraft is a debtor creditor agreement as defined under section 8 and 13 of the Consumer Credit Act 1974 (CCA74), and is a running credit account as defined in section 10. Accordingly, 78(1) of the CCA74 sets out quite clearly what is required in order for you to comply with my request, and quote “shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it”.

Do you think the above is ok? And what is an "informal" overdraft ??

Abs xx:)

[emandcole]

And what is an "informal" overdraft ??

 

Abs xx:)

 

Hi Abby, an informal OD is one you 'ask' for by accident if you like, in the case of there being no formal or pre-arranged OD facility. For example, the Co-Operative Bank (now that's an ironic name) state the following on informal OD's:

 

An informal overdraft is a situation where you may go overdrawn without a formal overdraft in place or exceed your agreed overdraft limit without prior arrangement. In this situation we consider you to have 'informally requested an overdraft' and may charge for this facility.

 

[Abby25]

That makes a lot of sense .. !!!! I've only ever had an arranged overdraft with them ... and as I say only actually started using it about 6 months ago .. !!!

 

I think they are trying to pre-emt my request for a singed agreement ... inferring that there was never actually an agreement in place for an ongoing overdraft .. which is laughable for the amount that it is (in the 1,000's to be exact .. available for yrs .... I know frightening ... !!!)

 

They're rang me 3 times today, twice on my mobile and once on the home line ... !!!

 

They are getting on my nerves now ... !!

 

Abs x

[Bigdebtor]

so if it was amended in 2006 , would that affect charges that pre date 2006

 

Gaznka

 

A very important question! Can someone in the know please answer it?

 

BD

[Bigdebtor]

They're rang me 3 times today, twice on my mobile and once on the home line ... !!!

 

They are getting on my nerves now ... !!

 

Abs x

 

Abby

 

I would look up the posts on telephone harassment and tell them you'll only communicate in writing from now on (I think there's a template on CAG somewhere for this ) and quote the law at them - also tell them you are recording the calls now. THey don't know if you're just bluffing and I found they scurry away back into their hole when told this!

 

BD

 

PS - Did you not change your name to Santander recently?

Maybe Nationwide don't want to lend to a competitor any more?

[Abby25]

Hi .. just thought I'd share this .. wonder what you think ..?

 

I CCAd NWide in relation to od on bank account, quoting to them that the OD part of acct is regulated by CCA74, and under what sections - and asking for a copy of my agreement.

 

They have replied with this, which is quite interesting really ..

 

"where a current account has an overdraft, then the overdraft element is partially regulated by the CCA. In the case of an overdraft, we must comply with CCA requirements in relation to taking action for recovery of the debt, so any notice we serve on a customer must comply with the CCA. However, the original agreement to grant an overdraft does not have to meet the formal agreement requirements of the CCA. Therefore your request to provide a copy of the credit agreement is not applicable."

 

(then they go on to say you can make a subject access request for £10, and that collection activites will continue, which could result in a default).

 

So on one hand i.e in THEIR benefit the recovery of ODs are covered by CCA (i.e they can register info on your credit record) - but in respect of any consumer protection, then no they are not regulated by the CCA ... confused .... or is that the name of the game???

 

Abs x

[the_shadow]

Hi .. just thought I'd share this .. wonder what you think ..?

 

I CCAd NWide in relation to od on bank account, quoting to them that the OD part of acct is regulated by CCA74, and under what sections - and asking for a copy of my agreement.

 

They have replied with this, which is quite interesting really ..

 

"where a current account has an overdraft, then the overdraft element is partially regulated by the CCA. In the case of an overdraft, we must comply with CCA requirements in relation to taking action for recovery of the debt, so any notice we serve on a customer must comply with the CCA. However, the original agreement to grant an overdraft does not have to meet the formal agreement requirements of the CCA. Therefore your request to provide a copy of the credit agreement is not applicable."

 

(then they go on to say you can make a subject access request for £10, and that collection activites will continue, which could result in a default).

 

So on one hand i.e in THEIR benefit the recovery of ODs are covered by CCA (i.e they can register info on your credit record) - but in respect of any consumer protection, then no they are not regulated by the CCA ... confused .... or is that the name of the game???

 

Abs x

 

 

Personally I'd say this is stretching things... for the s78 request they should to comply send a copy of the agreement/details of the initial overdraft offering. If they dont comply then your within rights to send account in dispute but they WILL and now CAN default you thanks to the McGuff ruling.

 

S.