Claimform - old Co-Op Cash Minder Account 'debt/'Lowell/BC***Struck Out***

[nefikan]

Hi all

 

A few years ago I used to have a cashminder account with Co-op bank, it's their basic bank account.

 

Late 2010 my dad suddenly passed away and I took out a couple of payday loans to help my Mum out with some expenses,

I know in hindsight not the best thing to do.

 

Early in 2011 I moved to RBS with a standard current account but

I forgot about 1 payment to a payday loan company that was still due to come out of my Co-op account and there was no money in.

 

Despite the fact that the payment was being made by debit card which had to be authorised,

Co-op honoured the payment, taking my account overdrawn and

then they started chasing for the money.

 

 

I had a brief argument with them at the time saying I couldn't and wouldn't pay

as they shouldn't have authorised a transaction taking my account so overdrawn

(it was around £100 from memory and the balance would have been pretty much nil at the time).

 

they appointed debt collection agency / "solicitor" duo of Lowell and Bryan Carter

 

 

they are now taking me to court for the money.

 

 

It's the original amount plus charges the Co-op added and also fees etc added by the debt collector.

 

The claim states:

 

"The claimants claim is for the sum of £427.71

being monies due from the defendant to the claimant under an agreement regulated by the consumer credit act 1974"

 

 

However, as it was a basic bank account

I never saw or signed a credit agreement

how can that statement be valid?

 

 

As it was a basic bank account there was no overdraft facility

and I have never had any other account or credit card with Co-op, just this basic bank account.

 

I responded to the claim stating that I didn't aknowledge the debt

and that I had only ever held a basic bank account with the Co-op

 

 

however I have now received a response from the court saying that they still wish to proceed

(however it's now been passed to the small claims track).

 

Any advice on this would be very much appreciated.

[AndyOrch]

Thread moved to Financial Legal Issues

 

If you could read and complete the following...posting your responses here to enable the correct advise on how to proceed.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?419198-You-have-received-a-Claim-What-you-need-to-do.-**UPDATED-December-2014**

 

Regards

 

Andy

[BankFodder]

This is from a phone.

Please check tomorrow for a full response.

I think that you have a good defence using BCOBS. Read up about BCOBS for the mo.

[oleg]

As well as completing the form Andy supplied,

please note that "no-overdraft" account TCs [to which you would have agreed on signing up]

 

 

invariably include a clause enabling the bank to honour a transaction you have authorised,

as would appear to be the case here, even if it takes the balance below 0.

Not because they are kind but because their automated systems don't always cope with such eventualities.

It is a significant failing on their part.

 

Unfortunately, it appears you did not close the Coop account or notify the payday loan sharks that you were doing so.

But why did you make a payment to them when there was nothing in the Coop account?

[oleg]

Just been thinking - would such an account have been governed by the CCA, though?

[nefikan]

I think this is what you want...

 

 

Name of the Claimant ? - Lowell Portfolio LTD

Date of issue – - 04/09/2014

 

 

- however as mentioned above this has already been responded to.

 

 

A date has been set for court hearing under the small claims track for 04/03/2015.

Most recent communication is from 17/12/2014 - allocating it to small claims track.

 

 

What is the claim for –

 

- The claimants claim is for the sum of £427.71

being monies due from the defendant to the claimant under an agreement regulated by the consumer credit act 1974

between the defendant and Co-operative bank under account reference xxxxxxx and

 

 

assigned to the claimant on 22/01/2013 notice of which has been given to the defendant.

 

 

The defendant failed to maintain contractual repayment under the terms of the agreement and

a default notice has been served which has not been complied with.

 

What is the value of the claim?

£431.18 + £35 court fee + £50 solicitors costs = £516.18

Is the claim for a current or credit/loan account or mobile phone account? Co-Op Bank Account OD

 

 

When did you enter into the original agreement before or after 2007? - prior to 2007

Has the claim been issued by the original creditor

or was the account assigned and it is the Debt purchaser who has issued the claim. - Account assigned to Lowell

Were you aware the account had been assigned – did you receive a Notice of Assignment? - Not sure

Did you receive a Default Notice from the original creditor? - I can't be 100% but I am pretty sure I didn't.

Have you been receiving statutory notices headed “Notice of Default sums” – at least once a year ?

 

Why did you cease payments? - N/A

What was the date of your last payment? - N/A

Was there a dispute with the original creditor that remains unresolved?

- Namely why they authorised and paid a debit card transactioni from a basic bank account that didn't have enough funds in it.

Did you communicate any financial problems to the original creditor

and make any attempt to enter into a debt managementicon plan? - No

 

In response to your question oleg,

my main question is that as far as I am aware this account is not governed by the CCA

therefore how can the claim be made relating to that?

[BankFodder]

Can you give us a breakdown of the sum claimed please.

 

Also did you file a defence or just an acknowledgment?

 

If a defence, what did you actually say?

[nefikan]

The only breakdown I can provide is as per the form above:

 

£431.18 + £35 court fee + £50 solicitors costs = £516.18

 

Regarding the amount of £431.18, I estimate at least 75% of it is bank charges from what I remember the original transaction was around £100.

 

In defence

I said that I did not acknowledge the debt and

I wanted more information as to what the debt was for.

I also stated that I did not have a credit agreement with Co-op bank

as I had only ever had a basic bank account with them.

 

No further information has been provided by Lowell relating to this debt,

just a letter from the court stating they wish to continue.

[BankFodder]

Please send the coop an SAR immediately. Send a copy to the solicitors

You will need to file an amended defence. Pity you didn't come here first.

Give them a very polite phonecall and tell them you want to amend your defence. Do they agree and will they send you a letter confirming. If they want to know details tell them that you'd rather not discuss it now but if they refuse then say you will make an application anyway which will probably be approved as it is the first time.

 

Have you read up on bcobs?

[nefikan]

I did read up on BCOBS but only generically - not sure which bit you are referring to?

 

So I'm asking Co-op for all the details in this case, which would then include a credit agreement if there is one and any transactions relating to this?

 

Who am I to phone the solicitors (Bryan Carter) to ask if they agree to me amending my defense? How do I actually go about making an application to amend my defense?

 

Thanks for all your help and advice so far.

[BankFodder]

Bcobs - tomorrow

Read up on SAR

Yes, then N244

[nefikan]

One thing I forgot to mention, the court has recommended this case for mediation and the solicitor has not objected. Not sure if it makes any difference or not.

[BankFodder]

You may as well agree. It won't change anything but it will give time for the SAR.

 

Call them as suggested

[dx100uk]

the payment would have been taken under the Continuous Payment Authority via your debit card number

you gave the PDL co at the time you signed up for the loan

 

 

if there was any credit even if by 1p it would have been honoured

 

 

dx

[oleg]

.

Sorry I hadn't realised you meant you had given the pdl lot a continuous payment authority,

thought you had just made a one-off payment with your debit card.

 

 

It answers my earlier query as to why you would have paid around £100 out of an account whose balance was around £0.

 

 

It now appears that this was an automated payment and you had not been tracking the balance. Unfortunately.

 

I am sorry but not, from several personal "incidents", surprised that the Coop were so uncompromising.

I shudder when some recommend their basic bank account.

 

 

Their "ethics" have never struck me as anything but a promotional gimmick.

[dx100uk]

I think all banks are the same sadly

hence the 1000's of threads in the PDL forum of the same nature

 

 

dx

[AndyOrch]

[i]" In response to your question oleg, my main question is that as far as I am aware this account is not governed by the CCA therefore how can the claim be made relating to that? "[/i]

 

 

 

Agreements covered by a s74(3) determination, and satisfying the relevant conditions, are exempt from most Part V rules including s61(1) on execution. However, the Agreements Regulations will apply to any document embodying such an agreement, and to any term expressed in writing

 

A determination under s74(3) was made by the OFT with effect from 1 February 1990. It applies to d-c agreements enabling the debtor to overdraw on a current account, under which the creditor is a ‘bank’ as defined in the Bankers’ Books Evidence Act 1879, provided that certain conditions are satisfied.

 

You can request the agreement/ overdraft Facility confirmation and Terms and Conditions from that date pursuant to section 61B of The Consumer Credit Act

[oleg]

Reason I wondered out loud yesterday about the applicability of CCA was that no overdraft facility agreement would, most likely, have been signed - or even implied. I wasn't sure on what basis, therefore, money could be deemed to have been lent - and owed - other than as a gift.

 

This s.74[3] thingymebob still leaves me slightly puzzled.

 

nefikan: present TCs of their basic bank account are viewable online but could vary considerably from old ; you could try searching via an internet archive such as wayback machine

 

As regards ethics [see above] I think my point has been missed. I wasn't talking about PDL outfits. I was commenting on Coop's long-trumpeted boast to be "ethically guided". The Rev Flowers episode and numerous other occurrences blew that myth to pieces.

[BankFodder]

Sorry about yesterday, I was on a train, using a tablet and trying to play Candy Crush at the same time. I could only give short answers.

 

SoDelicious!

 

BCOBS - The bank has a statutory duty to treat their customers fairly. If they failed to treat you fairly then you have a statutory right to bring an action in the County Court. This is all contained in the FCA rules – BCOBS - which were introduced in 2009 to replace the banking code.

 

The BCOBS rules are very powerful yet they are scarcely ever used and this is very largely because they are hardly ever publicised either by the FOS, the FCA – and not surprisingly not by the banks themselves.

 

We have had one occasion on this forum where we managed to help somebody with a BCOBS action which happened to be against Santander and it worked very well.

 

The banks are not used to dealing with claims or counter claims or defences based on BCOBS and it will probably throw them into a bit of pandemonium – so it might do them some good.

 

Please be aware that because BCOBS has effectively never been used before, this is a bit experimental – but we feel that you are on very safe ground and frankly you have nothing to lose because if you don't try to rely on the banks obligation to treat you fairly as a result of their BCOBS obligation, then you have very little to go on.

 

The unfairness is basically that they gave you a non-overdraft account – and although they do retain a discretion either to pay or not to pay, they are required to treat you fairly and that means that they must apply their discretion fairly. To allow your non-overdraft account to go overdrawn and then to start charging you charges and then charges on the charges is grossly unfair.

 

You are not the only person in this position. Over the years there have been hundreds of thousands of people in exactly your position with basic accounts and even though you're meant to be protected from going into an overdraft, the bank still uses these accounts as a cash cow. In fact, they must realise that basic accounts are probably even more profitable than ordinary accounts because with an ordinary account you simply pay a £15 or £20 fee every month. With a basic account, once you get into trouble then you're paying an unauthorised overdraft fee for every time a payment is made – or even when a payment is blocked.

 

I'll bet you that it is a scandalous secret that the banks would shudder to let us all know – what the profit margins are on basic accounts. I'll bet they are huge.

 

We think that your best interests are served by running an argument based on BCOBS. If you succeed then it will be of enormous help to huge number of other people.

 

Frankly, I think that if the bank starts to understand what is happening – then for the amount of money they are trying to get, I suspect they will put their hands up and try to forgive you the debt in return for confidentiality.

[nefikan]

Thanks for all the information. I am a little overwhelmed there is so much however I am willing to challenge the bank on this, I'm certainly not scared!

 

I'm preparing my SAR currently and in fact I work about 15 minutes walk away from Co-op's head office in Manchester so I can even hand deliver it. Based on what I've read that's the first place I need to start...the SAR...please correct me if I'm wrong?

 

One stupid question I have, how do I pay the £10? I don't have a cheque book.

[BankFodder]

Postal order.

 

Get the SAR to them now. Make sure that you get a receipt for it or at least the name of the person receiving it. Best to take a copy and get it signed.

 

If they refuse to accept it then log that as well. They have no business refusing.

 

However, we have come across this in their current T&Cs

 

 

overdraft Services

13.1

We do not offer formal overdraft services on this account but if you request a payment where you do not have

sufficient funds available on your account and our systems allow it to be paid we will not charge you even if the

payment causes you to overdraw your account. If we do not make the payment we can charge you an unpaid item

fee. Details can be found in our Account Charges leaflet.

13.2

If you do overdraw your account you agree to immediately pay into your account enough money to bring your account

into credit.

13.3

You are personally responsible for any money you owe us, whether this is as a result of your own actions or someone

authorised by you. If you have a joint account all of you together and individually are responsible for any money owed

to us on a joint account. We can demand payment from all or any of you.

 

 

http://www.co-operativebank.co.uk/as...sandconditions

 

and this might change things in your case so go cautiously. Put in the SAR.

 

Even if the initial charge can't be challenged, I think that the charges on charges can be.

[oleg]

Or £10 note if visiting in person. Mark envelope SAR request. Tell counter staff you need receipt. Demand to see Manager if they refuse and as bank fodder says, record the incident and add to your complaint.

[nefikan]

Hi everyone

 

Thanks for the advice to date.

 

I've got all my statements from the co-op but nothing else has been sent to me.

It's getting really close the court date which has been set for the 4th March.

 

I've also just received a letter from my local court telling me that I need to send all evidence that I will rely on in court

and a witness statement to the court and the claimant by 4pm this coming Monday, 23rd February. I missed that totally on the original letter.

 

Can anyone give me any advice on what to do at such short notice?

 

I was thinking about submitting the current terms and conditions of the account that state there is no overdraft.

 

Also a witness statement stating that I believe that this basic bank account is not governed by the CCA

and also that the the debit card provided with the account was a Visa Electron card

which requires every transaction to be authorised electronically by the bank.

Why did they authorise several transactions that took the account overdrawn and then further overdrawn.

 

Also, one other question I have, is

 

 

it likely that Lowell will send someone to my court on the date of the case or will just rely on the witness statement they have produced?

 

Thanks

[BankFodder]

When you were last on this forum we suggested that you amend your defence to include BCOBS.

 

 

Did you do this?

 

Also you asked us whether to go for mediation and we said that you might as well.

 

 

Did you do this?

[nefikan]

In all honesty,

 

 

I did the SAR request and then totally forgot about BCOBS as I was only focussing on the last few posts on this forum

and I didn't go back to the previous screen. Not good I know.

 

I did agree to Mediation,

as did the claimant however apart from the response to confirm my acknowledgement I've heard nothing else about that.