Sheriff puts Bank of Scotland to proof on bank charges

[johnnymitch]

just another thought btm , surely the cheques ,SO's and DDs were bounced because the regulated limit had been breached ....... ?

[locutus]

I was just thinking along the same lines JM. They sent letters out saying "adminastrative costs" and twisting it to say that an unpaid DD was a request for an overdraft, surely that puts them to either being lying Bankers or the CCA stuff does apply.... I personally think both (with the exception of the the letter "B")

[bustthematrix]

just another thought btm , surely the cheques ,SO's and DDs were bounced because the regulated limit had been breached ....... ?

Again, not necessarily. Can't assume everyone had an agreed Overdraft Limit.

[fergal71]

my girlfriend has 2 kids and lives on benefits she has just had a letter telling her that she is being charged by lloyds £90 for being £145 over overdraft for 3 days...... we should be marching in the streets... the telephone number is 0845 to complain yet from overseas they give an 0207 number

[TheyrCriminals]

Hello Bookie!

 

They obviously meant 1st April.

 

The year not being important!

 

It's obviously a blurdy big joke at the Consumers' expense, as usual.

 

Cheers,

BRW

 

That date is very important if this legal avenue is successful because consumers will only be able to reclaim charges based on a contract being concluded after the amemdement to the Consumer Credit Act 1974 came in to effect which I believe is 2007.

 

TheyrCriminals

[TheyrCriminals]

my girlfriend has 2 kids and lives on benefits she has just had a letter telling her that she is being charged by lloyds £90 for being £145 over overdraft for 3 days...... we should be marching in the streets... the telephone number is 0845 to complain yet from overseas they give an 0207 number

 

Well said fergal. As we now know the system screwed over most of us bank charge reclaimers, and I think protest action as well as other democratic actions should now be employed by consumers unless the coalition government steps in which I don't think it will as regards reclaiming past charges. As regards 0845 numbers being used by banks, companies and now government departments and agenices it is quite simply perverse! Greedy Britain at it again. Intelligent and effective action really should be considered at this stage.

 

TheyrCriminals

[Bookworm]

Ok, I'll be the 1st one to admit that the CCA 74 is not my forte, but how can overdrafts NOT be "regulated agreements for running-account credit", as per s10???? :-?

 

If someone can explain that one to me in max 2 syllable words, that'd be great.

 

THEN

 

If somehow they are NOT regulated, can someone then explain to me how they can default you using the same CCA??? Surely they can't pick and choose when the CCA applies to them and when it doesn't?

 

I am now officially even more confused than before. :-?

[Bigdebtor]

BTM

 

Thanks for your replies. The charges for bounced cheques and direct debits were always lumped in with the "unauthorised o/d" charges in the recent court cases - so I would say they should still be regarded as "overdraft charges" - but if we only win the battle on the charges imposed when they didn't bounce the cheque or DD then at least that is still part of the battle won - and we fight on.

 

BD

[Bigdebtor]

If you look at the GLC web site and their new template letter on Bank Charges you will see the CCA 1974 angle is only one of two strategies they suggest pursuing, the other being Regulation 5(1) of UTCCR - as hinted at strongly by the SC judges - so it looks as if it will be a while before the fat lady sings even if HBOS wriggle out of the current case.

 

BD

[Bookworm]

Well, I did my own research , and unless I am missing something, there can be no doubt whatsoever that overdrafts are in fact covered by the CCA.

[Undercover-Elsa]

I have this snippet saved in My Documents, but unfortunately I didn't note where it came from:

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 theyy mean is that they have the part v exemption. So a Subject access request 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.

 

Elsa x

[letsdothis]

Google is your best friend Elsa

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/237096-overdrafts-covered-ccas-4.html

[Bookworm]

Yes, I had found that too, as well as the one I linked to. There are plenty of threads on the subject, and I think no doubt whatsoever, so I am really wondering what the banks are going to try to pull out of the bag. That there are partial exemptions, in very specific areas, no doubt. But by definition, if they are exempt in parts, it must mean that they are regulated by the vast majority of it. :-?

 

I give up for tonight, my brain is aching.

[Bigdebtor]

These *ankers are clearly trying to guide us into a narrow track and hope we get stuck again - as they succeeded in doing with OFT - but they're now dealing with Govan boys - who eat rivets and Irn Bru for breakfast, girders for dinner and *ankers at tea time (Govan boys have their dinner - or piece - at lunch time and their tea at dinner time).

 

Sir Alex Feguson is regarded as one of the softer Govan boys - so *ankers had better watch out!

 

BD

 

PS Good evening guests!

[ncf355]

Hang on, how can that argument re it not being a regulated agreement fly when they send out S87 default notices on overdrafts?

 

If they dont believe its regulated, surely they have no need to send a default?

[Bigdebtor]

I think they're on the ropes! C'mon the Govan Boys!

 

BD

[Dipply75]

These *ankers are clearly trying to guide us into a narrow track and hope we get stuck again - as they succeeded in doing with OFT - but they're now dealing with Govan boys - who eat rivets and Irn Bru for breakfast, girders for dinner and *ankers at tea time (Govan boys have their dinner - or piece - at lunch time and their tea at dinner time).

 

Sir Alex Feguson is regarded as one of the softer Govan boys - so *ankers had better watch out!

 

BD

 

PS Good evening guests!

 

[Bookworm]

Hang on, how can that argument re it not being a regulated agreement fly when they send out S87 default notices on overdrafts?

 

If they dont believe its regulated, surely they have no need to send a default?

My point precisely! ;-)

[rdm2006]

my girlfriend has 2 kids and lives on benefits she has just had a letter telling her that she is being charged by lloyds £90 for being £145 over overdraft for 3 days...... we should be marching in the streets... the telephone number is 0845 to complain yet from overseas they give an 0207 number

 

Your GF needs to send them a LETTER OF APPROPRIATION.

 

When the bank apply charges it is because

 

A] There is not enough money in your account to cover the transaction

 

or

 

B] The transaction will exceed your overdraft limit

 

 

Therefore applying those charges either increases your overdraft or creates an unauthorised one - it is the very nature of the beast is it not ?

[noomill060]

CCA 74/06 regulates ALL commercial consumer lending in the UK.

 

The clue is in the name - "Consumer Credit Act"

 

The bank is clutching at straws. They be up Poo creek sans paddle, a boat (or even a pair of wellies)

[Undercover-Elsa]

Google is your best friend Elsa

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/237096-overdrafts-covered-ccas-4.html

 

 

LOL aye I have shares in Google!

The_Shadow couldn't remember where it came from either..

[008139]

Defence on CCA issue from HBOS (in a seperate Scottish bank charge claim case earlier this year (April) - since discontinued due to the ordinary cause being pushed for and no legal aid eligibility)

 

4. Denied. In relation to the pursuers averments regarding section 140A of the consumer credit act (the CCA) it is explained and averred that no challenge to charges may be brought under s.140A of the CCA where those charges were debited to the pursuers current account prior to 6 April 2007. Reference is made to the consumer credit act 2006, schedule 3 paragraph 14.

 

Accordingly in so far as the pursuer seeks to challenge charges from prior to that date his averments are irrelevant. Averments regarding unarranged overdraft fees from 6 April 2007 are made below. As regards returned item fees, a challenge against returned item fees based on s140A of the CCA is irrelevant.

 

Returned item fees were debited against the pursuers account not as a result of an agreement to provide credit. On the contrary, these charges were debited at a point at which the defender had refused to provide credit facilities to the pursuer. No credit agreement was entered into between the parties in relation to which a returned item fee was debited. Accordingly no challenge can be made against returned item fees under the CCA.

As regards unarranged overdraft fees from 6 April 2007, it is explained and averred that the first step in considering the pursuers challenge is identification of the relevant credit agreement. It is explained and averred that the current account agreement between the pursuer and defender is not a credit agreement in terms of the the CCA.

At the point at which the banker/customer contract was entered into between the parties it was not possible to say whether the relationship would result in indebtedness of the pursuer to the defender. Thus at the point which the current account was opened there was no agreement to provide credit. The current account agreement was not therefore a credit agreement in terms of the CCA.

The crdit agreement to be considered was the agreement entered into between pursuer and the defender on each occasion at which the defender agreed to provide credit facilities. In the context of the current action an agreement was entered into on each occasion when the defender agreed to the request of the customer for previously unarranged overdraft facilities.

However, although for the purposes of s140 of the CCA that is the relevant credit agreement, it does not follow that the unarranged overdraft fees debited on each of those occasions should be considered to be the price payable for the provision of that credit.

The unarranged overdraft fees are part of the package of remuneration payable to the defender for the whole range of services made available by them (as are the returned item fees). Accordingly in so far as the pursuer contends that the cost of the unarranged overdraft fees is excessive compared to the events giving rise to them no relevant issue under s140A of the CCA arises.

It is further explained and averred that in relation to the merits of the challenge under s140A against unarranged overdraft fees debited to the pursuers account from 6 April 207 the relationship between the pursuer and the defender is not unfair.

In deciding whether the relationship between the parties was or is unfair the court must have regard to the factors provided for at s140A(1)(a) to ©.

As regards (a) there is nothing unfair in the banks terms. As regards (b) and © it is explained and averred that the defender has not exercised its rights unfairly. Reference is made to the findings of the OFT in its December 2009 statement to the effect that “banks generally order the sequence of payments where possible in a way that is not harmful to or even benefits the interest of customers”. The said statement is produced and held to be repeated herein for the sake of brevity. In so far as the pursuers criticism concern a lack of competition such criticisms are not a relevant consideration under s140A of the CCA.

It is further explained and averred that in deciding whether to make a determination under s140A the court is required to take into account all matters it thinks relevant. It is explained and averred that the court ought to take into account the whole of the services made available to the pursuer under the banker customer contract. Reference is made to the averments in answer 3 which are held to be repeated herein brevitatis causa.

 

Hope it helps discussions on the subject.

[caro]

Defence on CCA issue from HBOS (in a seperate Scottish bank charge claim case earlier this year (April) - since discontinued due to the ordinary cause being pushed for and no legal aid eligibility)

 

 

 

[/font][/b]Hope it helps discussions on the subject.

 

My they've been busy.

 

Thanks for the info.

[brown1950]

CCA 74/06 regulates ALL commercial consumer lending in the UK.

 

The clue is in the name - "Consumer Credit Act"

 

The bank is clutching at straws. They be up Poo creek sans paddle, a boat (or even a pair of wellies)

 

I'm waiting for Aequitas to tell us otherwise !

[Falkirk1298]

Defence on CCA issue from HBOS (in a seperate Scottish bank charge claim case earlier this year (April) - since discontinued due to the ordinary cause being pushed for and no legal aid eligibility)

 

 

 

[/font][/b]Hope it helps discussions on the subject.

 

However, until fairly recently this same bank was telling its customers that bounced item and overdraft fees were there to cover it's costs, not as part of an overall package. These are from 2005:

 

"To cover our costs, we make a charge of £30 (maximum 1 charge per day) for any item we pay when your account is overdrawn in excess of any agreed limit. "

 

"To cover our costs, we make a charge of £35 (maximum three charges per day) for any item we can't pay."