Cap1 & CCA return

[AnimalMagic]

Overdrafts ARE covered by CCA, just the rules are a little different.

[car2403]

Car, I've just glimpsed at your thread.....I know what I'll be reading today! Is it significant that Nat West has not yet put a DN on the account? I've just had a threatening letter and I'm sure a DN can't be far behind! Thanks again! Cx

 

Overdrafts ARE covered by CCA, just the rules are a little different.

 

Yes and one of the things that is differently, usually, is the lack of a requirement for a Default Notice - most overdrafts are terminated using a Termination Notice, which is the agreed process entered in to when the overdraft was taken out.

 

More explained in that link in my sig and throughout my thread, link above.

 

[egg-sterminator]

Yes and one of the things that is differently, usually, is the lack of a requirement for a Default Notice - most overdrafts are terminated using a Termination Notice, which is the agreed process entered in to when the overdraft was taken out.

 

More explained in that link in my sig and throughout my thread, link above.

 

Hi Car see you gave detention to the " unenforcable cases on hold" thread after the post up or shut up advice have posted info on Professorgbr's thread "mbna application form" After looking round i realise with some shock sending a tampered with CCA under afidavit is the norm and not something new . I was niave enough to believe that justice was for all and even large organisations were subject to it and the law of this land . seems not . Any Professorgbr has a case in the manchester test case circus on the 30th the wording used seems to indicate it is as much to do with handling larger number of cases of the same type ie no signed cca's in one go and if a afidavit [as we all know how honest they are ] will suffice in place of an agreement is this the case ? Thanks Car Edited November 10, 2009 by egg-sterminator
thread name

[patrickq1]

Yes and one of the things that is differently, usually, is the lack of a requirement for a Default Notice - most overdrafts are terminated using a Termination Notice, which is the agreed process entered in to when the overdraft was taken out.

 

More explained in that link in my sig and throughout my thread, link above.

 

which is the agreed process entered in to when the overdraft was taken out,

i found i had an overdraft that had never been aggreed nor asked for in fact i made it plain and simple with the back at the time i do not require an overdraft...when in reallity the banks terminated my account on the wednesday and payed out cheques on the friday same week....ive been paying cccs for over four years,and i stopped paying them two months ago ? reason for stopping payment i asked them to provide all paperwork and statements of how much i had paid...nothing was forthcoming so hence i stopped paying them

where do i stand here

[car2403]

which is the agreed process entered in to when the overdraft was taken out,

i found i had an overdraft that had never been aggreed nor asked for in fact i made it plain and simple with the back at the time i do not require an overdraft...when in reallity the banks terminated my account on the wednesday and payed out cheques on the friday same week....ive been paying cccs for over four years,and i stopped paying them two months ago ? reason for stopping payment i asked them to provide all paperwork and statements of how much i had paid...nothing was forthcoming so hence i stopped paying them

where do i stand here

 

Most likely they will say that the overdraft agreement was entered in to tacidly, (spelling?) which is one of their ways of saying you agreed by behaviour rather than asking/signing something.

 

They most likely will also say that the cheques were pre-processed (delayed in processing) so were considered while the account was running. Double :rolleyes:

 

The key is, did they give you the T&C's or provide them when you signed up or send them shortly afterwards - if they didn't, they didn't comply with the OFT s.74 Determination and the agreement will be unenforceable as a result.

 

Is there a thread, Partick?

[MilkTrayMan]

Overdrafts ARE covered by CCA, just the rules are a little different.

Overdrafts are covered/explained in the following OFT document (...from A.128 I think?) 'The legal and regulatory framework behind personal current accounts'...

 

http://www.oft.gov.uk/shared_oft/reports/financial_products/oft1005a.pdf

 

 

patrickq1: The following FOS info may be of some help...

 

Banking: when a firm decides to close a customer's account

 

 

[MAGDA]

Speaking of overdrafts, what if a charge card debt was added to an overdraft (by chargecard, this is credit that needs to be paid in full monthly) thus putting it over its authorised credit zone limit, but it then transpires that the chargecard (which I've been told by Nwest is CCA regulated agreement) was unenforceable as it did not comply with the Act. Would there then be an argument that the chargecard debt shouldn't have been added to the O/d at all?

 

I'm not convinced, (because I haven't actually seen the agreement, and not sure if one ever even existed, although they should of course have provided one for me to sign before giving us the card) that the card is completely regulated, which is what Nwest are saying, but it will be at least partially regulated because it had a cash withdrawal facility.

 

I think they just gave us the card, because they don't seem to have any paperwork relating to it. Also, without statements for the card, I don't see how they can prove that the amounts they added to the o/d were accurate either.

 

I'm asking all of this as Nwest have taken us to court for this debt and currently defending it.

 

I do have a thread, but just wanted to ask this query specifically relating to the chargecard agreement to see if anyone could shed any light.

 

Many thanks for any help/advice,

 

Magda

[MilkTrayMan]

Hi MAGDA,

 

The following links goes some way to explain the difference between a Charge Card, a Credit Card + a Debit Card...

 

Charge Card

 

Credit Card

 

Debit Card

 

...Given that the info in the above links are 100% correct, it would imply that the 'Charge Card' in question forms part of a Credit Token Agreement...

 

Acceptance of Credit Tokens

 

 

Btw...I recently attended County Court where Natwest successfully obtained a Final Charging Order to secure amalgamated Personal Loan, Credit Card + O/D debts.

Unfortunately, I wasn't involved so as to be able to remind the defendant of questioning the possibile unenforceability of any component parts of Natwest's Claim until after the debts had previously been admitted to.

This was done at an earlier part defended hearing, where penalty bank charges formed a successful counter claim, thus negating the total amount allegedly owed.

 

Further arguments brought to the fore about the legalities of the composite agreements were dismissed outright by the DJ, despite Natwest still NOT complying with a previous direction for standard disclosure by the time that the Final hearing was held.

The DJ took the view that as bank statements that were produced showed that attributable monies had been regularly debited from the defendants current account, then they would have initally received the benefits of the good offered by Natwest + therefore Natwest were quite entitled to secure previously unsecured debts which had been defaulted upon.

 

In hindsight, an application to strike could have been made a condition of the failure to comply with the CPR Part 31, however the defended case was in the Fast Track + therefore subject to claims for substantial costs.

The fact that final costs of only approx £200 were awarded in what had become an unwinnable position spoke realms of the defendants individual fortitude when U consider that they had started fighting Natwest several years before CAG had even been dreamt of and had had to pick up the pieces themselves when a solicitor they had initially engaged went bankrupt before the 1st ever hearing.

It ended up an extremely good result all things considered.

 

The following recent High Court Case should serve as a reminder to peeps who may be relying too heavily on a properly executed Credit Agreement ever coming to light before SoLA becomes applicable, even after the Original Creditors have indicated that they do NOT possess one...

 

McGuffick v The Royal Bank of Scotland Plc [2009] EWHC 2386 (Comm) (06 October 2009)

 

 

[MAGDA]

Hi Milktrayman, yes, many thanks for the above links, will have a look at them. I had heard of the McGuffick case as someone recently lost in court when the judge brought that particular judgement up (saving the claimant's barrister from having to do his job) even though it was totally irrelevant in that particular case.

 

Nwest have issued a claim for around £18,000 (overdraft) and a huge chunk of that is made up of a charge card debt. The breakdown for the amounts charged each month didn't actually show on my bank statements, just the total amount debited, so I think Nwest should have to prove these amounts by providing the statements relevant to the charge card, as well as those for the current account (which I now have) and also any agreement that may exist, otherwise there is no proof that they are correct or justified. I do have other arguments for my defence, but just looking at ways to cast doubt on the charge card part of the debt, if I can do that.

 

£200 costs in the case you quote was a really good result wasn't it, I've been told by Nwest to expect in the region of £10,000, so not so good. How it can cost them that much, I really don't know.

 

Thanks for your help, Magda

[MAGDA]

One other question, if anyone can help, also being taken to court at the moment by Cabot. The accounts were in dispute and suddenly received court papers. I have got a thread, but just wondered if anyone knows the answer to this: Cabot has purchased two accounts, one ex MBNA credit card, the other was a loan with Hitachi Nova (DFS) so completely separate companies and totally unrelated. However, Cabot has lumped the two together as one claim, no breakdown of individual amounts on their POC (although I know what they claim the amounts are) just a total figure being claimed. Can they do this? where two agreements are entirely separate, lump them together as one claim. In effect, when I do the defence I will be defending two entirely separate claims with entirely different issues, even though they are lumped together as one. If it gets as far as court, then it is going to make it a lot more complicated at any hearing.

 

Many thanks, Magda

[enoughisenough]

Hi Magda

 

My thinking is that you can get the claim set aside on grounds that it is falsely premised. Judges hate this cavalier approach to using their resources. If you get the judge on side he/she will be hopping mad at this sort of presumptious behaviour.

[MAGDA]

Thanks EIE, that's something worth looking at. I know that sometimes a credit card and overdraft are lumped together on a claim if it's for the same company (say for example Lloyds TSB bank) but these are completely unrelated and they don't even specify the individual amounts of each alleged debt.

 

regards, Magda

[AnimalMagic]

Hi Magda

 

My thinking is that you can get the claim set aside on grounds that it is falsely premised. Judges hate this cavalier approach to using their resources. If you get the judge on side he/she will be hopping mad at this sort of presumptious behaviour.

 

I disagree. Magda allegedly owes the money to one company, the company that purchased the debt. The fact that the total debt was purchased from two separate companies, I doubt is relevant. If they were taking action on behalf of those separate companies, then you might be right, but (presumably) Cabot are taking action on their own behalf.

[enoughisenough]

The general defence of falsely premised is a good one because it allows you to attack from all angles when the judge asks why you think it is falsely premised. You start by demolishing their particulars of claim, move forward to questions of en forceable agreement and then finish with the UTCCRs. By the time you've done that you'll have the opposition solicitor begging for mercy. And remember that since it is falsely premised, they have vexatiously brought claim and should bear their own costs.

[enoughisenough]

Fair point animal magic, but then Magda is entitled to have properly detailed particulars of claim. Why would they conflate the two and is that not cause for challenging the veracity of the claim. It should be borne in mind that I have successfully challenged the entire claim in these circumstances. However it should also be borne in mind by Magda that this means nothing in her case.

[enoughisenough]

Have you asked Cabot for a notice of assignment. Or in this case two notices?

[MAGDA]

Hi Animalmagic and EIE, thanks for the replies. I have asked Cabot for a copy of the actual Assignment, but totally ignored. Now going to send cpr 18 and ask for everything relating to these claims. I do have the agreements for both - MBNA Unenforceable (although not according to Cabot) and the Hitachi one has various flaws I can probably play on. I think they should at least have stated the individual amounts on their POC for each account, because it's very vague as it stands.

 

thanks again, Magda

[AnimalMagic]

I think they should at least have stated the individual amounts on their POC for each account, because it's very vague as it stands.

 

Can't remember CPR ref, but it does say they should supply agreement with POC. In my recent case, this mattered little, nor did the fact the 'agreement' was not legible. The judge gave them an extra 6 weeks to come up with information that I have repeatedly requested over the last 4 years...

[enoughisenough]

Hi Magda

 

Have a look at this.

 

DCA: Using CPR 31.14 to Your Advantage - Consumer Wiki

[MAGDA]

Many thanks both, that doesn't surprise me AM, I know what these judges can be like, most of the time the claimant seems to get away with murder. Thanks for the Link EIE, much appreciated. Cabot seem a bit desperate at the moment, think they are looking to recover some money on all the unenforceable debts they've purchased.

 

Magda

 

Magda

[pedross]

I also believe that Cabot have made it difficult for themselves by lumping the two together. This will give you more options to discredit what they say and play on your strongest defense which appears to be the unenforceable one.

 

Pedross

[AnimalMagic]

Cabot seem a bit desperate at the moment, think they are looking to recover some money on all the unenforceable debts they've purchased.

 

I'm thinking that is the case with mine. They went for summary judgement and a few days before the hearing sent me a letter offering 75% discount.

 

I suspect the DCAs maybe have got wind of changes coming and are trying to collect what they can. Am I too much of an optimist?

[MAGDA]

I also believe that Cabot have made it difficult for themselves by lumping the two together. This will give you more options to discredit what they say and play on your strongest defense which appears to be the unenforceable one.

 

Pedross

 

Yes, that's true, they will have to put forward arguments as to why both claims are valid and not just lump the whole lot toegether as they have on their POC, so as you say, thay may be to my advantage.

 

I'm thinking that is the case with mine. They went for summary judgement and a few days before the hearing sent me a letter offering 75% discount.

 

I suspect the DCAs maybe have got wind of changes coming and are trying to collect what they can. Am I too much of an optimist?

 

No, don't think you are being too much of an optimist. From what I've read on other threads, Cabot are on very sticky ground. Who was your Cabot debt originally with, AM?

 

Magda

[AnimalMagic]

Mine's not Cabot, it's 1st Crud.

 

I issued the CPR letter and they came up with an illegible application form from back in the 80's, but no default notice, accounts or anything like that. They claim in their evidence the CD Rom had 'worn out', so they can't retrieve the records, yet apparently they 'know' I made a payment into the account in Nov 2002. Strange, since I have records dating from 1999 and this account doesn't appear anywhere. Thing is I am 95% certain that that agreement was terminated in early 90s, so I don't know how they got hold of it...! Scary how the data protection act doesn't protect you...

 

They claim the account was taken over by A&L in 2002, and produce as 'evidence' a page from an internet site saying A&L took over Chase Manhattan cards in 2002, but I am 100% certain our Chase Manhattan card was taken over by another provider back in late 80s and subsequently returned. Getting the evidence of this is a bit problematic as it's so long ago...

[MAGDA]

Mine's not Cabot, it's 1st Crud.

 

I issued the CPR letter and they came up with an illegible application form from back in the 80's, but no default notice, accounts or anything like that. They claim in their evidence the CD Rom had 'worn out', so they can't retrieve the records, yet apparently they 'know' I made a payment into the account in Nov 2002. Strange, since I have records dating from 1999 and this account doesn't appear anywhere. Thing is I am 95% certain that that agreement was terminated in early 90s, so I don't know how they got hold of it...! Scary how the data protection act doesn't protect you...

 

They claim the account was taken over by A&L in 2002, and produce as 'evidence' a page from an internet site saying A&L took over Chase Manhattan cards in 2002, but I am 100% certain our Chase Manhattan card was taken over by another provider back in late 80s and subsequently returned. Getting the evidence of this is a bit problematic as it's so long ago...

 

Sounds like a typical DCA. Seems as though you have more than enough ammunition on your side to make a mockery of 1 crud's claim anyway. They just never know when to give up. Cabot wrote to us around nine months ago stating that the o/s balance was £8-9,000ish, but now it has suddenly risen to over £15,000. Wonder how that can have happened....

 

Magda