Steps in dealing with unpaid overdraft

[feraree1]

I have a debt of £5k as an overdraft with the Halifax which when I was employed was no problem to service on a monthly basis. Since losing my job two years ago I got the Halifax to agree a token repayment of £1 until/should my circumstances improve. I have not had any luck finding another job and am trying to make a go of being self employed. The point is I do not have any regular income or any assets having lost my house and car etc during divorce. I have other debtors to pay and they have all agreed the token payment.

Halifax have now involved Fairfax Solicitors who are threatening me with letters and phone calls. I refuse to speak to them on the phone.

 

What letters etc can I send them to fight back? I have cca / sar other creditors to good effect but can these be used on my current account overdraft? I thought they were for loans?

 

thanks

[unclebulgaria67]

CCA not relevant, unless they have converted the overdraft into a loan.

 

You could have a look at the charges on the account, to see whether you can claim any back. Any charges which could be seen as a penalty, can be claimed back. You would need to ask for copies of all statements to check. As they might charge for statements, it might be cheaper to do an SAR, as that costs a max of £10.

 

In regard to your problem, I think you really need to consider looking into what options you have to relieve yourself of these debts, as otherwise this could drag on for years. Can you apply for a DRO ? Suggest that you contact National Debtline, Citizens Advice or CCCS.

[Abby25]

Bank accounts are not regulated under the CCA74 - but ODs certainly are (with part v exemption) - part v exemption just means that the bank doesen't have to provide a traditional cca document, as you would have signed and received with a loan or credit card. Instead they in place of a traditional cca document, send you the copy letter of facility you would/should have received when the od agreement commenced (and every time the auth od limit was amended i.e increased or reduced). They also have to send you any copy terms and conditions, statements etc......

 

HOWEVER, part v exemption only applies, if the bank when you send in your cca request claims it, if they don't then the normal cca procedures apply.

 

Additionally, if you are in unauth waters, then within 3 mths of you going outside of your auth od terms, your bank should have sent you details of the revised higher interest (unauthorised od) rate you were now subject to, and any other unauth OD charges to be applied, and the charging period. (they should also send you details of the charges applied to your OD during each charing period - i.e a monthy statement illustrating what they had added to the os debt).

 

Now, if your bank did not send you such information within the specified time frame, they effectively forfeit the benefit of Par V exemption as per the CCA, which means that the OD facility NOW needs a full and correctly executed signed credit agreement to be presented if they wish to pursue through the courts. Indeed, I am currently dealing with a NWide OD - which they have not proceeded any furhter than DCA letters, once they we advised of the above (inc the issue of a very dodgy DN).

 

I must stress that I have not tested the above in court - BUT if you are robust enough and demonstrate that you are aware of the consumer credit laws governing such matters, they may well elect to try it on with someone else who will roll over.

 

Hope this helps ...

 

Abs x

 

Link to an OD thread I have where I also discussed this .. it may help ... http://www.consumeractiongroup.co.uk/forum/showthread.php?295945-Triton-Natwest-

Edited February 9, 2012 by Abby25

[feraree1]

Hi

 

I am now in unauthorised waters due to the charges added by the bank, although the total owing now seems to have stopped increasing. I had the facility to increase the overdraft via the bank's internet banking site back in the day when I had a regular income and could live within the od limits. I don't remember them sending me anything outlining the terms and conditions etc. I just remember it all seeming very easy to increase my own overdraft up to a maximum level without needing to speak to anyone at the bank.

Thanks for the info regarding and amended cca (is there a template for this?) what I find frustrating is the way debts are passed form pillar to post, making it very unclear as to whom I should send anything to.

In the last 10 days I have sent a letter to the Halifax (no Reply), BLS Collections (no reply), Fairfax (no reply). Who should I cca? Should I even bother anymore with these companies or just ignore them all?

 

once again thank you all for your advice and support

[Abby25]

I would just sit tight until you hear from the next chaser.

 

In my own case, I sent a bog standard CCA request - and waited to see what they came back with - hoping that they would state it wasn't regulated under the CCA74 ! Which of course they did.

 

This claim then let me in with my rebutal of their false and mis-leading statements, further advising them of the regulation of the OD under S10 of CCA74, Coutts & Seb, and anything else that was relevant ... but I DID NOT ALERT THEM TO THE DUFF DN - as thats a dish served very cold (i.e if its pushed into court).

 

 

I have heard nothing further from them, save for a lame DCA letter, which I just ignored - my OD by the way is in the 1000's (so not something I believe they would easily give up due to the numbers invovled).

 

 

Have a read through the link I posted earlier, which has some good discussions ...

 

 

 

Hope this helps

[feraree1]

Would it be better to send SAR request then? Would this put the account in dispute and not allow DCA to chase?

 

Also does anyone know what to do when DCA ignores telephone harassment letter?

 

thanks to you all once again

[Abby25]

If they don't respond with a copy letter of the original letter of facility, and replacement ones for subsequent amendments to the OD, statements, etc - then that places the account in dispute.

 

If a DCA ignores the telephone letter, report to oft - my way of dealling was to just have the phone ring switched off = now no one calls.

 

hope this helps

 

Abs

[feraree1]

Dear Abs

 

many thanks yet again

[feraree1]

Quick update - RESULT

 

I have today received a letter from Fairfax stating they have removed my phone number from their call lists and all future communication will be by writing. I have still reported them to OFCOM etc anyway.

 

Have also cca'd them as well.

 

Now to work on them accepting minimal repayments !

 

thanks for all your support and advice I now feel I have some say in my life.

[jdes26]

Well done

Don't let them bully you

[Abby25]

Well done !!

 

If you need any help post their response to your "cca" request - just shout !

 

Abs

[feraree1]

latest update

 

I have received another letter from Fairfax with an apology about the phone calls, and also what my repayment offer is. I will await their reply to cca request and if it doesn't work I will offer a £1 pm as per my other creditors (which was what the Halifax agreed to in the first place!) Also no phone calls for two days!!

 

Many thanks to you all (esp Abs) and your support - it makes the difference between feeling stressed and almost criminal, to being a happy human again.

[Abby25]

Good news ... keeps us posted, any more help just shout !!

 

Abs x

[carcar]

Feraree1 and aby25

 

Really interesting thread.

 

I was wondering if you knew the answer to a quick question? - Once the CCA and SAR correspondance is being taken and the debt is in dispute in the meantime etc; could this effect your credit history in any way?

 

I ask because I am looking to do this and am worried abou the effect on my credit history.

 

Apologies in advance for quickly asking this in your thread and thanks in advance for any reply.

[Abby25]

Hi

 

Yes, your od will be registered with the CRAs, and once in dispute, although creditors are not meant to do this under OFT regs, there will be a default registered, once you have recd a default notice, and don't comply with the breaches.

 

The DN itself can be another tool to use, if incorrectly executed.

 

Hope this helps

 

Abs x

[carcar]

Thanks for the reply Abs.

 

What is a DN?

[Abby25]

Sorry Default Notice - of which the salient points of compliance are that:-

 

it must specify the breach (which on an OD would be failing to come back within your authoritsed limit)

what is required to remedy it

the results of not providing remedy as requested

whilst giving you at least 14 days from service of being able to remedy the default

....

 

otherwise its defective, and another item that may be considered as part of any defence.

 

A default notice is reqd under an OD agreement, as it is regualted under s10 of the CCA

 

Abs

[carcar]

OK, thanks.

 

They did seem to do everything required of the DN

[Abby25]

If you have already had a default notice, then it would have been obvious that it affects your credit record, as the recording of data is discussed within the DN.

 

Abs

[carcar]

The reason I asked, is because they haven't recorded anything yet. Because of this, I thought the letter was more of a threat, rather than an action.

 

However, if this is something they will proabably do, I'd better get onto things. I am trying to do 2 things - a) somehow pay a more affordable amount and b) preserve my credit history. Sounds simple, but I'm struggling to find the answers...

 

Many thanks for your replies

[Abby25]

You can't default on an agreement, and preserve your credit history - unless of course you remedy the default within the specified period - in that case although you will be shown as having late payments on payment profile, an actual default will not be registered.

 

If you don't remedy a default, it will be lodge on your credit records with the various agencies, and remain there for 6 yrs from registration.

 

Abs

[carcar]

OK, thanks Abs