Spinningfish V The Woolwich

[livelylad]

yes

[spinningfish]

Lovely!

 

Thank you!

[spinningfish]

My court claim, against the Woolwich, was issued through MoneyClaim on 21/03/2007. It was acknowledged, with the The Woolwich intending to defend, a few days after it was issued.

 

By my reckoning the 28 days was up yesterday, yet when I log into MoneyClaim it still just shows it as being acknowledged.

 

Is this right, or is there something I should do now?

 

Thanks!

 

Fishy...

[livelylad]

My court claim, against the Woolwich, was issued through MoneyClaim on 21/03/2007. It was acknowledged, with the The Woolwich intending to defend, a few days after it was issued.

 

By my reckoning the 28 days was up yesterday, yet when I log into MoneyClaim it still just shows it as being acknowledged.

 

Is this right, or is there something I should do now?

 

Thanks!

 

Fishy...

 

Ok claim issed then deemed served after 5 days, they then have 14 days to acknowledge if they do they get a further 14 days to defend so total is 33 days from date of issue.

 

This will help.

http://www.consumeractiongroup.co.uk/forum/site-questions-suggestions/71369-getting-mcol-right.html

[spinningfish]

Ah I see....

 

Four more days to go in that case!

 

Thanks Lively!

 

Mr Fish

[spinningfish]

How do they normally pay out by the way?

They changed the account so that when I put my debit card in the cash machine, it got eaten!

[Sjkl18]

Hi,

 

I see you are claiming through money claim and so am I. Can you tell em what address you put for the Woolwich? I have a Barclays address I used to send my first 2 letters asking for the money back.

 

thanks

[livelylad]

REGISTERED ADDRESS: -

Woolwich

1 CHURCHILL PLACE

LONDON

E14 5HP

[Sjkl18]

Hi,

 

Thanks for that. I put my claim on moneyclaim website friday. What happens next?

 

Sarah

[spinningfish]

Afternoon All

 

I've looked a few threads, and there seems to be differing views as to whether the CCA applies to agreed overdrafts with banks, as some would argue that it is effectively a form of credit.

 

Does anyone have definitive answer to this one???

 

Thanks as always!

 

Mr Fish...

[lookinforinfo]

Overdrafts come under section 10 of the Consumer Credit Act.

 

10.—(1) For the purposes of this Act—

(a) running-account credit is a facility under a personal credit agreement whereby

the debtor is enabled to receive from time to time (whether in his own person, or

by another person) from the creditor or a third party cash, goods and services (or

any of them) to an amount or value such that, taking into account payments

made by or to the credit of the debtor, the credit limit (if any) is not at any time

exceeded; and

(b) fixed-sum credit is any other facility under a personal credit agreement whereby

the debtor is enabled to receive credit (whether in one amount or by

instalments).

(2) In relation to running-account credit, " credit limit" means, as respects any period,

the maximum debit balance which, under the credit agreement, is allowed to stand on

the account during that period, disregarding any term of the agreement allowing that

maximum to be exceeded merely temporarily.

(3) For the purposes of section 8(2), running-account credit shall be taken not to

exceed the amount specified in that subsection (" the specified amount") if—

(a) the credit limit does not exceed the specified amount; or

(b) whether or not there is a credit limit, and if there is, notwithstanding that it

exceeds the specified amount,—

(i) the debtor is not enabled to draw at any one time an amount which, so far as

(having regard to section 9(4)) it represents credit, exceeds the specified

amount, or

(ii) the agreement provides that, if the debit balance rises above a given

amount (not exceeding the specified amount), the rate of the total charge for

credit increases or any other condition favouring the creditor or his associate

comes into operation, or

(iii) at the time the agreement is made it is probable, having regard to the

terms of the agreement and any other relevant considerations, that the debit

balance will not at any time rise above the specified amount.

[spinningfish]

So the bank should be legally responsible to provide a signed copy of the agreement, the same as loans, credit cards etc?

[lookinforinfo]

Correct.

[un1boy]

Are you sure about this Lookingforinfo?

 

I have been told that they are exempt and that the bank only has to provde writen confirmation at the time the overdraft is taken.

[spinningfish]

This is what I mean - there are varying opinions on this,

[un1boy]

I, personally would have thought that in order for them to enforce payment of the overdraft through the courts, they would have to provide the original agreement/application and terms and conditions so that they can prove:

 

1. That you actaully applied for the account and it wasn't just opened for you.

2. That you agreed to the terms and conditions, ie to pay it back!

[lookinforinfo]

To help clarify matters, this is an extract from a Court case Coutts v Sebastyen and this part is partt of the summing up by the Judge in relation to overdrafts and teh Consumer Credit Act-

 

THE ACT

It is common ground:

 

 

(a) that the agreement for an overdraft of £2,000 in the terms of Coutts' letter dated 5 April 2002 was a regulated debtor-creditor agreement within the meaning of sections 8 and 13© of the Act, providing for 'running-account credit' within the meaning of section 10(1)(a) of the Act (in effect, a revolving credit within the agreed credit limit of £2,000); and

 

 

(b) that, as such, it was subject to the requirements of Part V of the Act (including the requirements as to documentation set out in sections 57 to 63 of the Act) save and in so far as it was excluded or exempted from such requirements.

 

Section 65 in Part V of the Act provides that an "improperly executed" regulated agreement is unenforceable by the creditor without a court order. It is common ground that a regulated agreement is "improperly executed" for this purpose if the requirements of sections 57 to 63 have not been complied with.

 

Section 74 of the Act provides for the exclusion of certain agreements from Part V. It provides as follows (so far as material):

 

"74. – (1) This part …. does not apply to –

 

(a) ….

(b) a debtor-creditor agreement enabling the debtor to overdraw on a current account, …

© ….

(2) ….

(3) Subsection 1(b) … applies only where the OFT so determines, and such a determination –

(a) may be made subject to such conditions as the OFT thinks fit …

(b) ….

(3A) …. in relation to a debtor-creditor agreement under which the creditor is …. a bank …. the OFT shall make a determination that subsection 1(b) above applies unless it considers that it would be against the public interest to do so.

(4) …."

Part VI of the Act relates to matters arising during the currency of credit agreements. Section 82 in Part VI, which is headed 'Variation of Agreements', provides as follows (so far as material):

"82. – (1) ….

 

(2) Where an agreement (a "modifying agreement") varies or supplements an earlier agreement, the modifying agreement shall for the purposes of this Act be treated as –

 

 

(a) revoking the earlier agreement, and

(b) containing provisions reproducing the combined effect of the two agreements,

and obligations outstanding in relation to the earlier agreement shall accordingly be treated as outstanding instead in relation to the modifying agreement.

 

 

(3) ….

(4) If the earlier agreement is a regulated agreement for running-account credit, and by the modifying agreement the creditor allows the credit limit to be exceeded but intends the excess to be merely temporary, Part V …. shall not apply to the modifying agreement.

(5) ….

 

(6) ….

(7) …."

 

 

THE DETERMINATION

 

The Determination (which is signed by the Director of Fair Trading) is made under section 74(3) of the Act. I set it out in full:

"1. Under the powers conferred upon me by Sections 74(3) and (3A) and 133 of the Consumer Credit 1974, I, the Director General, being satisfied that it would not be against the public interest to do so, hereby revoke with effect from 1st February 1990 the Determination made by me in respect of Section 74(1)(b) and dated 3 November 1983 and now determine that with effect from 1st February 1990 Section 74(1)(b) shall apply to every debtor-creditor agreement enabling the debtor to overdraw on a current account, under which the creditor is a bank.

 

 

2. This Determination is made subject to the following conditions:-

 

 

(a) that the creditor shall have informed my Office in writing of his general intention to enter into agreements to which the Determination will apply;

(b) that where there is an agreement between a creditor and a debtor for the granting of credit in the form of an advance on a current account, the debtor shall be informed at the time or before the agreement is concluded:

- of the credit limit, if any,

- of the annual rate of interest and the charges applicable from the time the agreement is concluded and the conditions under which these may be amended,

of the procedure for terminating the agreement;

and this information shall be confirmed in writing.

© that where a debtor overdraws his current account with the tacit agreement of the creditor and that account remains overdrawn for more than 3 months, the creditor must inform the debtor in writing not later than 7 days after the end of that 3 month period of the annual rate of interest and charges applicable.

3. In this Determination the terms 'creditor' and 'debtor' shall have the meanings assigned to them respectively by Section 189 of [the Act]. The term 'bank' includes the Bank of England and banks within the meaning of the Bankers' Books Evidence Act 1879 as amended."

[un1boy]

Looking, that's great info, have I understood it correctly?

 

That if thye haven't supplied the relevant info (APR etc) in writing the the agreement is unenforcable?

 

Also, where exactly does it state that without the agreement they can't enforce it?

[lookinforinfo]

That would be s.127-but of course with an overdraft there isn't an

executed agreement in the same way as exists for a loan etc.

[un1boy]

So how exactly are they required to provide a copy of the original application form?

 

I'm really confused here mate, lol.....

[lookinforinfo]

The agreement they mean is the one mentioned in my post foom the Court

case-

(a) that the agreement for an overdraft of £2,000 in the terms of Coutts' letter dated 5 April 2002 was a regulated debtor-creditor agreement within the meaning of sections 8 and 13© of the Act, providing for 'running-account credit' within the meaning of section 10(1)(a) of the Act (in effect, a revolving credit within the agreed credit limit of £2,000); and

[spinningfish]

So they would have to provide the original account application, which should have the provisions within it, if credit were to be taken?

 

Or am I barking up the wrong tree?

 

Thanks guys...

[lookinforinfo]

Not quite. You need the confirmation letter from the bank when you took

out the overdraft. That should explain the conditions under which you

are governed-ie APR, the amount of the overdraft and when it expires.

 

If you wanted to see the original agreement of your current account, you

would probably have to send them an sar. that would then open a new can of worms if they fail to supply the OA.

[un1boy]

Not quite. You need the confirmation letter from the bank when you took

out the overdraft. That should explain the conditions under which you

are governed-ie APR, the amount of the overdraft and when it expires.

 

If you wanted to see the original agreement of your current account, you

would probably have to send them an S.A.R - (Subject Access Request). that would then open a new can of worms if they fail to supply the OA.

 

I understand - I have been advised by my bank that they can supply me with a copy of the letter they sent when I first was issued with the Overdraft in 2000 (even though I was granted a student one in 2002).

 

I can't get around that without acknowledging the overdraft, can I?

 

Also, I have requested a copy of the original agreement and also received all info in with reference to my sar however, they have confirmed they don't have the original current account/overdraft application form.

 

They also told me that, as they can produced the letter dated 2000, they can prove and satisfy their obligations under the CCA.

 

How do I get around this Lookin?

[lookinforinfo]

Take one step at a time Un1boy.

First, get the copy they say they can supply. It should have come with the sar, shouldn't it?

If they can provide it, does it comply with the regulations?

And what happened to your 2000 overdraft when you opened the 2002

Student one? Were they merged or did you no longer have the original overdraft by then?