OFT debt collection guidance

[rory32]

Just a quick point with regards to notice of assignments from DCA's.

If the notice includes an amount demanded that is incorrect it renders the notice legally invalid (e.g. unlawful charges or DCA admin/collection charges).

Even if the amount doesn't include charges but is misstated it is still invalid.

If the date is incorrect it is legally invalid (i.e. does not tie in with the deed of assignment - the execution of assignment should be the same as the date shown on the notice).

The case that supports this is W.F.Harrison & Co Ltd v Burke [1956] 1 WLR 419

 

P.S Thanks go to Laiste for pointing this out.

[rory32]

"I have a thread on this elsewhere in this forum, so I hope its OK me asking this here. Does that mean that they cannot add charges that are disproportionate to their costs, or that they cannot add charges at all?"

They can not add charges full stop.

 

In answer to your other question - the CCA would show what ou agreed to. If they fail to supply it (or say you can't have it) after 12 working days from receipt of the request they are in default. Once they are in default the debt is unenforceable without them producing a copy of the agreement and so you can withold an payment.

 

Supplying you with a copy of the agreement is your legal right. Whether they feel obliged to do so or not is neither here nor there. If they refused and then produced it in court the case would be thrown out on the isue of discloser.

 

If you give me a link to your thread I'll have a look at it.

[rory32]

Hope you are well pete - glad to here you got the result you wanted

 

Rory

[rory32]

Greendykes, hopefully this will help.

 

From the Consumer Credit Act 1974:

 

Facts. The manager of the C Bank agrees orally with D (an individual) to open a current account in D’s name. Nothing is said about overdraft facilities. After maintaining the account in credit for some weeks, D draws a cheque in favour of E for an amount exceeding D’s credit balance by £20. E presents the cheque and the Bank pay it.

Analysis. In drawing the cheque D, by implication, requests the Bank to grant him an overdraft of £20 on its usual terms as to interest and other charges. In deciding to honour the cheque, the Bank by implication accept the offer. This constitutes a regulated small consumer credit agreement for unrestricted-use, fixed-sum credit. It is a debtor-creditor agreement, and falls within section 74(1)(b) if covered by a determination under section 74(3).

 

Facts. F (an individual) has had a current account with the G Bank for many years. Although usually in credit, the account has been allowed by the Bank to become overdrawn from time to time. The maximum such overdraft has been is about £1,000. No explicit agreement has ever been made about overdraft facilities. Now, with a credit balance of £500, F draws a cheque for £1,300

 

Analysis. It might well be held that the agreement with F (express or implied) under which the Bank operate his account includes an implied term giving him the right to overdraft facilities up to say £1,000. If so, the agreement is a regulated consumer credit agreement for unrestricted-use, running-account credit. It is a debtor-creditor agreement, and falls within section 74(1)(b) if covered by a direction under section 74(3). It is also a multiple agreement, part of which (i.e. the part not dealing with the overdraft), as referred to in section 18(1)(a), falls within a category of agreement not mentioned in this Act.

 

Facts. Under an oral agreement made on 10th January, X (an individual) has an overdraft on his current account at the Y bank with a credit limit of £100. On 15th February, when his overdraft stands at £90, X draws a cheque for £25. It is the first time that X has exceeded his credit limit, and on 16th February the bank honours the cheque.

Analysis. The agreement of 10th January is a consumer credit agreement for running-account credit. The agreement of 15th-16th February varies the earlier agreement by adding a term allowing the credit limit to be exceeded merely temporarily. By section 82(2) the later agreement is deemed to revoke the earlier agreement and reproduce the combined effect of the two agreements. By section 82(4), Part V of this Act (except section 56) does not apply to the later agreement. By section 18(5), a term allowing a merely temporary excess over the credit limit is not to be treated as a separate agreement, or as providing fixed-sum credit. The whole of the £115 owed to the bank by X on 16th February is therefore running-account credit.

 

Facts. The G Bank grants H (an individual) an unlimited overdraft, with an increased rate of interest on so much of any debit balance as exceeds £2,000.

Analysis. Although the overdraft purports to be unlimited, the stipulation for increased interest above £2,000 brings the agreement within section 10(3)(b)(ii) and it is a consumer credit agreement.

[rory32]

The advice you were give was sort of right. They were wrong to say an overdraft isn't covered by a CCA request as most are. However, unfortunately, in your case this is a business overdraft so would not be covered by The Consumer Credit Act as you would not be a consumer in this case, but a business.

[rory32]

I have now looked at little more into this but could you tell me when the overdraft was taken out and how much the overdraft is for.

[rory32]

Also are you a sole trader or partnership?

[rory32]

This may be covered, but I'll have to check.

 

If you start a thread on this (probably either in general debt or the debt collection subforum) you'll get more input on this.

 

As a seperate issue, are you planning on claim the charges back?

[rory32]

Can only agree with remus, the more reading you do the more you will understand your rights. Once you have a good understanding of your rights you are far less likely to be intimidated by these people - who often don't have a clue about the law.

 

Remember if in doubt just ask.

[rory32]

Time to start reporting them to TS. It is them who should be getting in touch with Paypal not you.

[rory32]

I'm afraid this is often standard practice. They tend not to put a lot of info on the postcard to try and get around The Data Protection Act and dupe you into phoning them. Have you started a thread on this?

[rory32]

Last week they told my family that they will bring police in their house. Can they do it?

No, it's a civil matter. What is the account in relation too?

[rory32]

It's best if you start a thread on your situation in the Debt Forums. For credit card debt the police won't come to your home and you can't go to jail over it. The DCA dealing with your account have no legal powers. It's best if you don't speak to them on the phone (it's your legal right to insist that all communication is in writing) as you have already found out they will tell you any old rubbish on the phone. Phone calls can also be denied unless you record them. If you don't know how to start your own thread have a read here http://www.consumeractiongroup.co.uk/forum/welcome-consumer-forums/107001-how-do-i-dummies.html

[rory32]

It removes the temptation to be creative with photoshop when supplying copies of credit agreements, etc.

[rory32]

If you start your own thread and give some background info on which DCA has contacted you and how you'll receive all the help you need sauheil. If you don't know how to start your own thread have a read here "How do I...?" A Dummies' Guide to this Forum