Cap1 & CCA return

[cab1ne]

Hi

 

No dont think your missing anything

 

Peter

 

thanks peter.

 

EDUCATIONAL insight;)

 

cab

[diddydicky]

Hi Peter, unfortunately you are right, it is happening more and more as we can see from many of the cases on this forum.

 

In my case, with the Cabot claim, it is just an application form and when it was signed, the prescribed terms were nowhere in sight. As you mention though, they will argue it was all part of the same document.

 

It's still the case, from my experience, that the judges are only too ready to believe everything the creditor says, and most of the time they are lying through their teeth.

 

Still, going to fight this one to the end and see what happens.

 

regards, Magda

 

and on the bright side.......nothing like a defective DN from that lender to disprove that theory to the judge

[Peterbard]

and on the bright side.......nothing like a defective DN from that lender to disprove that theory to the judge

 

HI Yes a deffective or missing notice can be used to set aside a judgemnt or challenge the creditor on his right to pursue.

 

Usually though if pre hearing it just results in the creditor drafting a correct one and after the requisite period carrying on.

 

Peter

[MAGDA]

Hi, just wondered if anyone on here has ever had a Natwest personal banking charge card. I think this card was at least part regulated as it had a cash withdrawal facility. The reason I am asking is that the 'debt' for this card (when we fell into financial difficulties) was added on to our overdraft, causing us to exceed our overdraft limit.

 

Nwest has now issued a claim for the overdraft, and I want them to prove the charge card part of the debt (making up a considerable amount of the o/d) including the figures they claim to be correct.

 

I have been asking for paperwork on this since 2007 (firstly in a SAR) and have received absolutely nothing, and nothing in response to cpr 18. I can't even get a straight answer on whether it was a regulated,part regulated, or not regulated at all, agreement.

 

It would be really helpful if anyone has any experience of this particular card, or a copy of one of the agreements for this.

 

many thanks,

 

Magda

[uptoeyeballs]

Hi, just wondered if anyone on here has ever had a Natwest personal banking charge card.

 

Hi Magda,

 

Had one of those. They withdraw the card adding it to my overdraft, then I had a loan to pay the O/D and a previous loan (they claim to not be able to find the agreement for this).

 

Just got all my statements through. Something is not right, but I'm still trying to get to the bottom of it. As yet I have no information on the charge card account, not even from my SAR.

 

uteb.

[MAGDA]

Hi Magda,

 

Had one of those. They withdraw the card adding it to my overdraft, then I had a loan to pay the O/D and a previous loan (they claim to not be able to find the agreement for this).

 

Just got all my statements through. Something is not right, but I'm still trying to get to the bottom of it. As yet I have no information on the charge card account, not even from my SAR.

 

uteb.

 

Hi uptoeyeballs, that sounds very like mine then. I think if they are claiming say £19,000 on an overdraft and £12,000 or more of that is made up from the charge card debt, theyshould have to prove that. I don't remember ever being given any agreement for the charge card at all. In fact, we were advised it would be better for us financially if we upgraded our account and the charge card came as part of the package I seem to remember. I'm pretty sure these cards are regulated to some extent, if not completely.

 

Like you, I sent a SAR and Nwest said I would need to contact a different dept for the charge card, whch I did. That resulted in absolutely zero. I have tried speaking to various people at Nwest (without mentioning my name or the fact that we have a claim against us) and just asking in a general way for more info on the card, but they don't seem to know. They are absolutely clueless. I asked if the charge card agreement was a regulated agreement under the Act, and the person didn't know what that meant (nor did her supervisor) and they were supposedly the dept dealing with these cards! Eventually they came back and said "Yes, it was regulated." So, who knows....

 

I will be surprised if Nwest can provide any of this paperwork, and your own case seems to confirm that as well.

 

many thanks, Magda

Edited February 19, 2010 by MAGDA

[uptoeyeballs]

I seem to remember. I'm pretty sure these cards are regulated to some extent, if not completely.

 

My understanding is that it is like a credit card (and regulated), but the payment terms are to repay the whole balance each month.

 

Been over to your overdraft thread and it's given me a few idea's where else to poke around. This is definately my most comlpex debt to unravel.

 

uteb.

[MAGDA]

Hi uteb, good luck with the digging! If you find out anything on the charge card, let me know and I'll do the same.

 

regards,

 

Magda:)

[MAGDA]

Is it correct that if an account is closed (because, for example, the o/s balance on that account was transferred - with or without your consent - to an overdraft) then the creditor is not required to provide a copy of that agreement under a s77/78 request. What about under a SAR?

 

What if court proceeding are then issued for the overdraft account and you ask the bank to provide a copy of the agreement for the credit card, or whatever, relating to that (significant) portion of the debt that makes up this overdraft debt? Also, should it be possible to force the bank to prove the amounts of that (credit card) debt, now added to the overdraft, by production of statements?

 

many thanks, Magda

[vint1954]

Hi Magda,

 

This comes under the right of off set, if it is in your agreement.

 

They can only off set against positive ballances, not causing you to go overdrawn, even if there is an arranged overdraft.

 

Vint

[MAGDA]

Hi Magda,

 

This comes under the right of off set, if it is in your agreement.

 

They can only off set against positive ballances, not causing you to go overdrawn, even if there is an arranged overdraft.

 

Vint

 

Hi Vint, in our case, we had an overdraft for £7,500 and the balance was around £5,800ish. Natwest then added a debt which they claimed (as you state) to have the right to off set. This brought the balance up to £12,500, they then added a further payment which they claimed still to be outstanding for the following month and this increased the balance to around £17,000+

 

So our overdraft was then way over the authorised credit zone (now subject to court proceedings) and I want them to prove their figures (and that the agreement for the card debt was actually valid/enforceable in the first place).

 

From what you say then, they shouldn't have added this debt on (even though we had an authorised o/d) if it meant us going overdrawn (exceeding our limit)?

Many thanks, Magda

[vint1954]

I would be inclined to check the banking ombudsman out and the OFT.

 

They certaily would not be able to go over your agreed limit and I am fairly certain that it has to be a positive ballance. They cannot turn a regulated agreement into a non regulated one. Chancing their arm I think.

 

Check out the clause in the loan or CC agreement, allowing them to offset and I think you will find that it states a posive ballance.

 

I think you need to write to them and state that you are not happy and want the situation reversed, as there was no positive ballance.

[vint1954]

Yes, thought it was the case. The ballance has to be a credit ballance. This form the FOS site.

 

banking: firms' right of 'set off'

 

It is not unusual for a customer to have a current account, a savings account and a credit card account – all with the same bank or building society. The same customer might also have a loan, an ISA and a mortgage with that firm. And some of those accounts might be held jointly with someone else, usually a spouse or business partner.

 

In this article we look at what the firm can (or should) do where a customer does not have enough money in a particular account to make payments due from that account, but does have sufficient funds in one of their other accounts with the firm.

 

For example, when an overdraft facility on a current account runs out and the customer fails to pay the amount owed, can the firm take money from the customer’s savings account to reduce or clear the debt? Or, if a customer fails to make credit card or mortgage payments, should the firm use available funds from that customer’s current or savings account to make the missing payments, thereby helping the customer to avoid extra interest or charges?

 

The basic position is that a firm has a right – but not a duty – to look at a customer’s overall position and to ‘combine’ the accounts held by that customer. This is sometimes called a right of ‘set off’ or a right to ‘combine’ accounts. A firm has this as a general right, whether or not it mentions the right in the account terms. So, in the examples above, the firm can transfer money from an account that is in credit in order to make payments due on another account. But it does not have to do this.

Certain conditions must be met before the firm can exercise its right of ‘set off’.

The account from which the firm transfers funds must be held by the customer who owes the firm money.

The account from which the firm transfers the money – and the account from which the money would otherwise have come – must both be held with the same firm.

The account from which the firm transfers funds – and the account from which the money would otherwise have come – must both be held in the same capacity by the customer concerned. So, for example, if Mrs C holds a savings account in her capacity as treasurer of a local society, the firm cannot take money from that account to pay Mrs C’s personal credit card bill that she normally pays from the current account she holds in a personal capacity.

The debt must be due and payable. For example, if a customer misses making a loan payment, then (at least until it calls in the loan) the firm can take only the missed payment – not the balance of the loan.

 

We would not usually expect a firm to warn customers before it exercises its right of ‘set off’. A warning might prompt customers to move their money to an account with a different firm. But we think that it is usually good practice for a firm to tell a customer as soon as possible after it has made a transfer.

 

We would not generally expect a firm to use ‘set off’ before giving the customer a reasonable opportunity to pay the debt. However, what is ‘reasonable’ might depend on the customer and the history of the account.

 

The general position can be modified by agreement between the firm and its customer. This might include:

 

an agreement that ‘set off’ be available to a firm’s mortgage arm, where it is a separate legal entity;

an agreement to regularly ‘sweep’ any money over a certain balance out of a current account and into a savings account;

an agreement that money held by a customer in one capacity can be used to pay debts owed by the same customer in a different capacity.

The following case studies illustrate how this works in practice.

case studies: banking - firms' right of 'set off'

40/1

transfer from joint account to pay debt on sole loan account

Mr G, an elderly widower, needed help with his financial affairs. He decided to make his daughter, Mrs B, a joint account holder on his current account. In that way, she could pay bills for him. It would also be easier for her to tie up his affairs after he died.

Some time later, Mrs B took out a personal loan with the same firm. Her father was quite unaware that she had difficulties paying the monthly instalments, and that the firm eventually called in the loan. Because Mrs B was unable to repay the money, the firm transferred funds into her loan account from the joint account she held with her father.

When she discovered what had happened, Mrs B was extremely upset because it meant that she had to tell her father about her financial problems. This was not only an embarrassment for her – it became a serious worry for her father.

When she complained, the firm defended its actions, telling her that the terms and conditions of the joint account allowed it to transfer the funds from the joint account. Unhappy with this, Mrs B then brought her complaint to us.

complaint upheld

The edition of the terms and conditions that the firm referred to was the most recent version. It had been issued some years after Mr G had opened his current account – after Mrs B had become a joint account holder and after Mrs B had taken out the loan.

Mrs B did not recall seeing the leaflet containing the updated terms and conditions. However, she accepted that she might well have received a copy as part of a regular mailing from the firm – probably with her monthly statement.

We noted from the latest version of the terms and conditions that there was a term allowing the firm to take money from the joint account to pay debts owed solely by Mr G or by Mrs B, as well as to pay debts owed by them jointly. However, we thought that this was such a radical departure from the normal position that it was an ‘unusual’ term. It was also an ‘onerous’ term, because its effect was to make Mr G liable for Mrs B’s debts.

A firm can only rely on terms that are ‘unusual’ and ‘onerous’ if they have been brought fairly to the customer’s attention. The Banking Code says that customers must be given personal notice of any terms that are to their disadvantage. We did not think it enough for a firm simply to include the revised edition of the account terms when it sent out routine statements to its customers, which is what had happened here.

We also thought that the term was ‘unfair’ within the meaning of the Unfair Terms in Consumer Contracts Regulations 1999. This was because it created a significant imbalance in the parties’ rights and obligations, to the detriment of customers. Specifically, it had the effect of making Mr G a guarantor of Mrs B’s debts – but without giving him the information that a guarantor should usually be given.

We told the firm to transfer the money back to the joint account – leaving it to find other ways of recovering the money that Mrs B still owed.

.............................................

40/2

transfer from savings account to daughter’s credit card account

Mrs J had a current account and a savings account with the firm, as well as a credit card account. She was also an 'additional cardholder' on the credit card that her daughter had with the same firm.

Mrs J decided to set up a standing order to pay £100 a month from her current account into her credit card account. Unfortunately, a mistake by the firm resulted in the money going instead to her daughter’s credit card account.

Then because no payments were being made into Mrs J’s credit card account, the firm decided to transfer money into that card account from her savings account. When the firm refused to uphold her complaint about this, Mrs J came to us.

complaint upheld in part

Mrs J had not paid the bill for her credit card. The card was issued by the firm and held by Mrs J in a personal capacity. She held a savings account with the firm, also in a personal capacity. So the firm could use money from Mrs J’s savings account to pay her card bills.

However, it was clear that if the firm had set up the standing order correctly in the first place, there would have been no arrears. And Mrs J was not liable for her daughter’s card bills, even though she was an additional cardholder. So we told the firm to reverse the entries and to make any necessary adjustments to the interest and charges that Mrs J had been asked to pay.

Mrs J’s daughter remained liable to pay her own credit card bill.

.............................................

40/3

transfer from sole savings account to pay arrears on joint mortgage

Mr D and Miss T had a joint mortgage with the firm. Mr D also had a savings account with the same firm. He was often a few weeks late in making his mortgage payments and, on a number of occasions, he had to pay fees for being in arrears.

A couple of weeks before the couple were due to go on holiday, Mr D visited his local branch of the firm. He intended to withdraw some money from his savings account in order to pay a few bills and get some spending money for his holiday.

However, he was very shocked to find that the balance on his savings account had been reduced almost to nothing. The firm had transferred most of his savings to pay the arrears on his and Miss T’s mortgage.

complaint rejected

The mortgage was held on a ‘joint and several’ basis. That meant that Mr D and Miss T were both liable to make payments on it – both individually and together. So, Mr D did owe the mortgage arrears to the firm.

Mr D held the savings account in a personal capacity. So the firm could transfer money from Mr D’s savings account to pay the arrears he owed on the mortgage. It did not matter that Miss T also owed those arrears, because that did not make any difference to Mr D’s liability for them. We therefore rejected the complaint.

[MAGDA]

Hi vint - many thanks for the above and for taking the trouble to find this - I hadn't realised any of this, I thought they could just 'offset' a debt whether there was a credit balance or not - so that's very interesting.

 

The only worry I have is that my card that was offset onto the overdraft was a charge card, which, in theory, I was supposed to settle in full each month. Would it still be the case that if there wasn't a credit balance on the account (it was already overdrawn by over £5,000) the bank should not have offset it onto the o/d? Should I have been given the opportunity to settle the charge card by monthly instalments, much as I would a credit card that fell into arrears do you think? Thinking about it, if the charge card had been, say, with Amex for example, and I hadn't been able to pay it, they couldn't have offset it, because there wouldn't have been any other accounts with them, so some other arrangement would have been reached to repay.

 

I can't actually check any t&cs or small print relating to this account, as despite repeated requests to the bank since 2007, they have provided zilch... Because I am now defending a court claim for the o/d, this could all have a really important impact of my defence. I have also been requesting statements to prove the amount as I don't recall getting final statements once the account hit problems, and I want to confirm these amounts, again reached a dead end.

 

Many thanks again, Magda

Edited February 20, 2010 by MAGDA

[means2anend]

Just received a letter from my friend..Lat July 2009 Carter said that his account was on hold and the matter was baing referred back to OC Nationwide.

 

Last Oct 2009 we put in a s78 request.There was no reply so we put in ANOTHER request this earlier this month for s78..Letter this morning says

 

''Our client has obtained a judgement against you and is entitled to enforce that judgement and accordingly we look forward to hearing from you with payment proposal''

 

There has been no notice of date or venue of proceedings let alone receipt of any defence of alleged particulars of claim against my collegue.

 

What is he playing at and what would be the next step

 

Can anyone please advise...I have my own ideas on how to progress but it would be prudent to acquire the collective wisdom of you all

 

rgds

 

m2ae

[ODC]

You need to find out at which court the judgement was issued and then apply to have it set aside on the grounds that you were unaware of the Court case. If in fact Bryan has not obtained judgement then you must report him. If judgement was granted at an old address you must also report him. These are just two of his snide little tricks

[Peterbard]

Hi All

 

Rregarding the issue of wether the bank should provide agreemnts on varios types of loans.

If the loan was a fixed sum loan under any curcumstances then they should have a regulated agrement the section 74 declaration does not apply and they are not exempt from all the stipulations of section61 the same goes for a normal running account agreemnt, if the loan was an overdraft then this is still a running account credit account but is exempt from section 61 requirements as well as the rest of part V of the act so ther is no agrement to produce,bit it is still regulated under the act.

 

To me the movement of funds out of or into any regulated account would be a breach of the agreement and the cca.

 

You would need to follow the stipulations for a modifying agreement as in the act in order to legitimise this.

 

Regards

Peter

[means2anend]

You need to find out at which court the judgement was issued and then apply to have it set aside on the grounds that you were unaware of the Court case. If in fact Bryan has not obtained judgement then you must report him. If judgement was granted at an old address you must also report him. These are just two of his snide little tricks

 

 

what procedure is involved in finding out which court issued the claim..OR NOT

 

I do not wish to contact him for mere fact of alerting him..

 

What about SCB or similar once facts are found out

 

Thanks ODC

 

rgds

 

m2ae

[MAGDA]

Looking at the offset thing again - I can't find any info on Nwest's website for the personal banking charge card, but theydo have some info on the business charge card and it states that at least a part of it is regulated under the Act. It doesn't say anything, as far as I could see about offsetting any outstanding payment against an already negative balance. Be very interesting to get hold of a copy of my agreement for the card, though not sure if there ever was one to be honest. I think they just upgraded the account, but didn't provide any agreement.

 

Magda

[vint1954]

Hi vint - many thanks for the above and for taking the trouble to find this - I hadn't realised any of this, I thought they could just 'offset' a debt whether there was a credit balance or not - so that's very interesting.

 

The only worry I have is that my card that was offset onto the overdraft was a charge card, which, in theory, I was supposed to settle in full each month. Would it still be the case that if there wasn't a credit balance on the account (it was already overdrawn by over £5,000) the bank should not have offset it onto the o/d? Should I have been given the opportunity to settle the charge card by monthly instalments, much as I would a credit card that fell into arrears do you think? Thinking about it, if the charge card had been, say, with Amex for example, and I hadn't been able to pay it, they couldn't have offset it, because there wouldn't have been any other accounts with them, so some other arrangement would have been reached to repay.

 

I can't actually check any t&cs or small print relating to this account, as despite repeated requests to the bank since 2007, they have provided zilch... Because I am now defending a court claim for the o/d, this could all have a really important impact of my defence. I have also been requesting statements to prove the amount as I don't recall getting final statements once the account hit problems, and I want to confirm these amounts, again reached a dead end.

 

Many thanks again, Magda

Hi Magda,

 

Yes, it would need to always be a credit ballance to setoff anything, be it charge card or credit card. I had always thought as much and the FOS confirms that. In reading their advice sheet, it is the account that money is being paid out from, that has to be in credit. As I understand it and have read above, if there is £20 in your current account, they can take that, but not increase another debt. They are totally in the wrong and they know it, but try it on. I think you need to hammer them. They are attempting to turn a regulated agreement into a non regulated one.

 

Which bank was it?

[vint1954]

Looking at the offset thing again - I can't find any info on Nwest's website for the personal banking charge card, but theydo have some info on the business charge card and it states that at least a part of it is regulated under the Act. It doesn't say anything, as far as I could see about offsetting any outstanding payment against an already negative balance. Be very interesting to get hold of a copy of my agreement for the card, though not sure if there ever was one to be honest. I think they just upgraded the account, but didn't provide any agreement.

 

Magda

I think the best thing to do is to get onto Natwest and advise them that what they have done is against the law. Put it right pronto.

[vint1954]

This is from their own web site for business charge cards.

 

4 Set Off

4.1 The Bank may at any time and without notice (subject to any provisions for

the protection of a debtor afforded by statute) set off the outstanding

balance on the Accounts and any other liabilities arising under this

Agreement against any credit balance on any account(s) of the Business

(in any currency). The Bank may also, on the occurrence of any of the

events referred to in Condition 3.5, or upon termination in accordance with

Condition 11.1, combine the Accounts with any other account(s) of the

Business.

 

Page 22.

 

http://www.natwest.com/microsites/commercial/onecard/downloads/form1_application.pdf

[MAGDA]

I think the best thing to do is to get onto Natwest and advise them that what they have done is against the law. Put it right pronto.

 

Thanks for the great advice - I am going to write to Natwest next week and put them straight on this! I could have managed to clear the overdraft over a period of time if it had just been £5000ish, and it was within our authorised limit, with monthly payments, but with the charge card slapped on as well, it just got completely out of hand. At one point they claimed we owed nearly £26,000 with interest...

 

Will let you know how it goes.

 

Many thanks again, Magda:)

[MAGDA]

This is from their own web site for business charge cards.

 

4 Set Off

4.1 The Bank may at any time and without notice (subject to any provisions for

the protection of a debtor afforded by statute) set off the outstanding

balance on the Accounts and any other liabilities arising under this

Agreement against any credit balance on any account(s) of the Business

(in any currency). The Bank may also, on the occurrence of any of the

events referred to in Condition 3.5, or upon termination in accordance with

Condition 11.1, combine the Accounts with any other account(s) of the

Business.

 

Page 22.

 

http://www.natwest.com/microsites/commercial/onecard/downloads/form1_application.pdf

 

So that confirms what you've been saying doesn't it, and from the info you provided earlier, would be the same for the personal account charge card as well.

 

Cheers, Magda

[bello217]

Hi

 

I wonder if PT257 could confirm the details of the case that is due to be heard in Cardiff and when

 

I have an Egg agreement which in the first instanc seemed enforcebale so I have been paying it but if this menas I mkay be able to challenge it then I am reLLY INTERESTED IN HEARING WHAT HAPPENS

 

MANY THANKS