CCA when loan paid off by overdraft?

[Leolemon]

Hi,

I'm booked in to see a solicitor but I'd welcome any of your thoughts as it will help me prepare good questions.

 

In 2001 the bank paid off one of two defaulted loans by using an overdraft account. This was done on the same day all the accounts were closed and shipped off to a debt collector.

 

Therefore the single balance they pursue is made up of the second loan and an overdaft (an overdraft inflated by paying off the first loan). I hope that makes sense.

 

I would like to see a copy of the agreement for the loan which they paid off using my overdraft just before the accounts were closed. Is the 'overdraft' part of the balance covered by a CCA request?

 

I do understand that overdrafts have some exemption but this overdraft was used to pay off a loan - the banks decision.

 

It would be a good loophole I guess if banks could pay off loans by using overdrafts then pursue you for the overdraft which enjoy slightly less legal standing than the loan?

 

I've made several requests for copies of all agreements over the years and they've admitted to not having any.

 

Cheers

[debbbbsy]

You cannot CCA your overdraft.. But you must send a SAR. you must also request a copy of your overdraft agreement.

 

Inorder to take a payment from your current account to pay off the loan without your consent, there must exist an agreement that allows them to do this. As they have admitted that they cannot provide an agreement which entitled them to do this, challenge any claim.

Get the statements. This will show how the overdraft was created. Without an agreement showing you owed the loan, demand that the account be credited. Remember, all correspondence can be submitted with your defence, if/when they instigate legal proceedings.

[Leolemon]

Hi Debbbsy, thanks for taking the time to reply.

So it's your understanding that I can request a copy of the overdraft agreement?

 

I do have closing statments of account. That's what they have always sent me when I've requested copy agreements in the past. The statements show the last few weeks of transactions between current and loan accounts, including the transfer - or offset as I understand it - the bank made to pay off the loan account.

They have no copies of anything else, and have pursued me for an amount based on the closing statements only. They don't even know how much they claim I original borrowed in the first place because there's no records.

I've just resent a SAR and CCA request - sent the last one last year and no copies of agreements. They are trying to put together a reconstituted version this time and have delayed the request. I don't know how they will do this if the original amount of loans is not known.

Anyway, thanks for your help, it's preparing me!

[tinyones]

I am too having same with Barclays so can either advise what letter I send to Wescot is it the CCA request or a SAR? and what template do i use for that request please? any help appreciated

[cerberusalert]

I am too having same with Barclays so can either advise what letter I send to Wescot is it the CCA request or a SAR? and what template do i use for that request please? any help appreciated

Send Wesclots this; http://www.consumeractiongroup.co.uk/forum/content.php?428-General-debt-letter-if-you-know-nothing-of-the-debt and make them prove a debt exists and they have the right to collect.

 

Send the bank a SAR to see what unfair charges PPI etc you can reclaim, also it should throw up some interesting facts as to whether the O/D is now fully covered by CCA 1974 because they've paid the cc with an overdraft and thus created a loan. http://www.consumeractiongroup.co.uk/forum/content.php?417-A-Subject-Access-Request-for

[2Grumpy]

The overdraft would generally be enforceable, the credit cards would not.

This looks like a cynical attempt to make unenforceable credit cards enforceable

 

They will claim the haev a right to offset. This does not include increasing an overdraft.

[tinyones]

sorry to sound dumb but to send them are SAR? is there a template for this?

[cerberusalert]

http://www.consumeractiongroup.co.uk/forum/content.php?417-A-Subject-Access-Request-for

[Leolemon]

Sorry, I'm confused here. I don't understand why credit cards are being mentioned?

I started the thread with a question relating to a loan paid off by an overdraft when the accounts were closed and sent to the debt collector. The banks decision and not mine. I had no idea until ten years later that they even did that the day the account was closed - I always assumed the amount was for the loan, not an overdraft.

[cerberusalert]

Credit cards & loans are treated the same under CCA 1974, they both need enforceable agreements.

[cerberusalert]

Is there a period of six years (five if you're in Scotland) where you made no payment or written acknowledgement of the debt? If so it will be Statute Barred.

[tinyones]

I received a letter today from wescott saying that as it is a bank account (overdraft) they don't have to issue me with anything and they are now requesting the payment for the sum of money. Is this true or shall i send another letter as I have sent the letter as advised by cerburusalert above

Thanks

[cerberusalert]

Which letter did you send them... the 'Prove It' letter in post #5?

[tinyones]

Yes,

I sent the letter you had listed on that message and got reply sometime last week saying it had been requested from Bank and then saturday to say they had contacted bank and as its a bank account they dont have to send any agreement and im to send the money NOW!!

[2Grumpy]

Have you sent a CCA request for the loan?

[cerberusalert]

They don't have to send an agreement for an overdraft but they do have to provide proof not only of the debt but also that they have the right to collect it.

 

Have you sent the bank a SAR so that you can get to the bottom of this? Because technically they have converted the overdraft into a personal loan as well by paying the original loan off.

[tinyones]

I haven't sent a SAR to the bank as yet no. I will send this off today. Will I send another letter to Wescot in regards to this and say I have sent SAR to bank?

[tinyones]

Also if this it to Barclays does anyone know what address this should be sent to as I am unsure and don't want to send to just any address for Barclays

[cerberusalert]

Data Protection Team

Dept LRC

Barclaycard

Northampton

NN4 7SG

 

Will I send another letter to Wescot

Ignore them for the time being.

[tinyones]

Thanks. And with it saying 'Barclaycard' in address they will also have details of my bank account too there?

[cerberusalert]

Send it to this address instead;

 

Mr Peter Townsend

Barclays Bank PLC

Privacy and Data Protection

Radbroke Hall

Knutsford

Cheshire

WA16 9EU.

[tinyones]

Thanks will do

[tinyones]

I sent off the SAR request and have yesterday recieved statements from Barclays. I have taken account of a payment made to RAC (of which I had cancelled before I moved so I have been on phone to them this morning to challange why anyone would want or pay for duplicate covers) They claim they may not be able to refund as its past the 14th day of cancellation but I won't be leaving it there as this too has incurred charges at the bank. I also have two payments for my Barclaycard which they have taken after I said I couldn't afford to pay and then numerous 'RESERVE FEES'???? which the reserve fee's total over 100 pounds.

I am not unsure as to what to do with this information in regards to contacting wescott again?

[debbbbsy]

I received a letter today from wescott saying that as it is a bank account (overdraft) they don't have to issue me with anything

 

This is quite simply a lie. The most probable reason for this response is that they have requested documents from the OC, who have admitted they don't have anything. With nothing to prove you owe the money, they make it up as they go along.

 

They must provide a copy of your current account application (to prove you opened the account), information about your overdraft,and the agreed credit limit.

You must CCA the OC for a copy of the Loan. It must contain a clause that legally allows them to pay it from monies in you current account. Even if the clause exists, before terminating the account, they would have to issue the correct paperwork, & follow lawful procedures,any deviation from this allows you to challenge them. Request officially all the documents they should have issued.

 

Debs

[tinyones]

Thanks Debs.

The information sent from the Bank is issued from 2008. I opened the account in 2006 so no statments before 2008 have been sent to me and nor has my application to open the account nor any aggrement ir overdraft etc? Shall I write back to Wescott and say that until you provide me with a copy of my account application from the bank I am not paying?