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quark2009

my letter to request CCA for an overdraft account / overdraft in dispute

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guys could you please have a look at this letter and tell me if there is anything in the letter that should not be there.

 

also if this thing goes to court am i putting my-self in a disadvantageous position simply by stating in that letter that " I would also like to consider negotiating the settlement of this debt " and thereby acknowledging the debt, but then may be i can answer my own question by saying that i have been on debt management for >2 years which is acknowledgment anyway.

 

 

 

 

see the letter below

many thanks ,

===============

 

Dear Sir/Madam

 

Thank you for your letter of XX May 2010, the contents of which have been noted.

 

 

Your letter states that overdrafts are not subject to the Section 77 of the Consumer Credit Act, as you will no doubt be aware the case Coutts & Co v Sebestyen[2005] EWCA Civ 473 clearly states the opposite. The overdrafts are exempt from part V only, however the CCA 1974 still does cover the overdrafts as a regulated running account credit agreement and the creditor must still comply with the determination as in s74(3) and the creditor is NOT exempt from s78.

 

I require that you send me a true copy of the executed agreement / contractual arrangement as required by the Consumer Credit Act 1974. For your information an overdraft is a debtor creditor agreement as defined under s 8 and s13 of the CCA 1974 and is the running account credit as defined in section 10. Again if you are claiming part V exemption then the Determination under s74(3) still requires you to comply with its conditions one if which being the contractual arrangement via a prescribed method and set up within the statutory time limit of the overdraft first usage. If you are unable to supply the requested documentation because no such agreement exists then I require a written confirmation of this. This debt/account is now being considered in dispute and is therefore unenforceable until such time that you can produce me with the above mentioned documents and until you comply with the statutory requirements.

 

Case law extract for your information:

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.

 

On XX May 2010 I made a formal request for a true copy of the original Consumer Credit Agreement for the alleged account under consumer credit Act 1974 s77/s78. You have failed to comply with my legal request, and as such the account entered default on 30 May 2010. The documents that you are obliged to send me are mentionned above.

 

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 the said agreement and other relevant documents mentioned in it, Failed to provide any of the documentation requested, 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 21 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 21 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 / contractual arrangement 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 21 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint. I therefore request a copy of your official complaints procedure which you are obliged to supply.

 

I would also like to consider negotiating the settlement of this debt. In order for me to able to make an offer I would need all of this additional information, thus I would appreciate if you could kindly supply the following:

 

1) Evidence of the banks compliance with the Determination under s74(3) Consumer Credit Act 1974, if claiming part V exemption.

2) The point (1) above should at least include the exact copies of:

- your notice to OFT regarding Determination compliance,

- default notice to my-self,

- termination notice to my-self,

- contractual arrangement to my-self.

3) The proof of postage for all the above.

4) For your information: The meaning of the “contractual arrangement” is as within the Determination under s74(3) CCA 1974.

5) Details of all the charges, debits and credits that make up the current owed amount of the whole overdraft (since the time it was first overdrawn/used and/or since my first letter to you advising of my financial difficulties, whichever is the earlier) to determine whether there are any unlawful charges and other debits that possibly should not be included into the overdraft.

 

If you would still like to comply with this statutory request I enclose the £1.00.

 

I would appreciate your due diligence in this matter. I look forward to hearing from you in writing only and by registered post only.

 

Yours faithfully,

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imo, could maybe take out the " I would also like to consider negotiating the settlement of this debt... etc. (that can always be sent later 'without prejudice'), and wait to see what they come up with first.

have you read this thread http://www.consumeractiongroup.co.uk/forum/showthread.php?237096-Are-overdrafts-covered-by-cca-s and this one http://www.consumeractiongroup.co.uk/forum/showthread.php?235954-Big-Overdraft-must-respond-to-Court-Claim-Please-help!

have they threatened legal action? if so, you may want to consider a cpr request for any relevant docs.


IMO

:-):rant:

 

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max. what did you decide to do? any developments?


IMO

:-):rant:

 

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hi

they keep replying with the same stuff, saying that they dont have an agreement and they are not supposed to have one and that the overdraft is still enforceable and they will keep on demanding payments.

 

and i am not too brave yet to stop paying, not sure what to do.

 

i probably should request SAR.

 

do you know if they are allowed to add loan payments to the overdraft after the date when i tried to cancel the loan DD to the same bank but they refused to cancel the DD and after i also said to them that i have to default on the loan agreement because of running into financial difficulties.

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They refused to cancel your DD?????

I would be getting myself another bank account with a bank not associated with yours!


:razz:ALWAYS REMEMBER, IF YOU GOT YOURSELF INTO YOUR SITUATION, YOU ARE MORE THAN CAPABLE OF GETTING YOURSELF OUT OF IT

WITHOUT THE HELP OF THE DCA's!!!!!!!!!!!

 

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running a little off subject max but you seem to know what to do with an overdraft as I too am in similar situation and wasnt sure if I can send them a cca request does this apply to overdrafts too? My loan payments and barclay card payments were still being taken after i told them i couldnt afford to pay

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max

unless maybe the loan has to be 'linked' to dd payments from the same bank? then you could, as huggysboss suggests, open a new different bank a/c then change the loan dd to that new a/c, (maybe let one payment go through if possible?) then just cancel the dd?

in any event, open a new account elsewhere as they'll probably do their best to 'set off'. but, AFAIK they are not supposed to 'set off' where it would increase indebtedness? and, they should take into account any 'financial difficulty'.

 

imo

Edited by Ford
typo

IMO

:-):rant:

 

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Hi max2009 I am in a very similar position with nastywestminster wish you well have you made any progress ?

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