Unenforceable Overdrafts - CCA Information

[Flossy]

Re: Overdrafts - CCA Information

Thanks boss.

This has not been picked up. I mentioned the CCA and it was said that they do not need to send out this information. I think that was the end of the conversation on that.

I sent the CCA request twice that you did for me and they said they didn't have to send. End of.. I have not asked for further information from Cabot that they are suppose to supply, as you have mentioned above. The YB did not default me and have never sent out any annual statements or anything you have noted above.

[Never-In-Doubt]

Re: Overdrafts - CCA Information

The fact is there is no prequisite to send a cca as such, what we do is ask for the annual statement and renewal agreement for the overdraft plus confirmation of charges which is what they're bound to send, but most do not.

If they don't send this then you *could* argue that fact in court but if you're using our preferred solicitors then they should pick up on this and if not please remind them of it, just mention c.39 s.74 CCA and they'll know (as does Paul)......

[Flossy]

Re: Overdrafts - CCA Information

*Note to self - read the whole thread before commenting* :blush2

I have now realised that the whole thread was started due to my O/D and CCA. The boss :niddy drafted the 'Niddy special' for my O/D for Cabot.

As you can see from my post above that I got nowhere with sending the letter as Cabot just point blank refused! So, my question is how can they refuse sending me the CCA if the law changed 2010?

I understand we are 'testing the water'so to speak a bit with this but, as it is now the law it should be adhered to. No?

Does the fact that Cabot are taking my case to court affect them sending my CCA?

If all of the above does not affect the DCA in my case Cabot, from sending my CCA, why wont they send it and how do you make them send it? Also, does the CCA (if I did or didn't get one back)then have to step back from lifting the stay in the court case?

[Flossy]

Re: Overdrafts - CCA Information

Hi all..

Its all a bit confusing to people that do not know about these things.

My O/D with YB now with DCA Cabot had been sold while under an agreement with the bank, I also never received a default for this account!

I did a similar letter as the Boss :niddy has written above but, they refused to send anything back to me as they said it did not apply! I had the same as above with an agreed overdraft and went over that into an un agreed overdraft and still I was not able to get a CCA?

What's the difference between my case and the case above?

This is obviously all a bit confusing and seems to be all individually tailored to each person?

[Never-In-Doubt]

Re: Overdrafts - CCA Information

[QUOTE=CleverClogs;160190]or are they still claiming that the Act exempts business overdrafts?[/QUOTE] I would hazard a guess at the latter ;W ;W

[CleverClogs (RIP)]

Re: Overdrafts - CCA Information

[QUOTE=mgfboy;160157]I realise that a loan being in default , is different to it being enforceable. The question I was asking is does the fact the OD is in default effect the position on using the agurements noted above. I know it doesn't effect normal loans and Credit cards but as we know OD's are different.[/QUOTE]
Have the onanists :toss complied with section 74 ([URL="http://www.legislation.gov.uk/ukpga/1974/39/section/74"][B]link[/B][/URL]) of the Consumer Credit Act 1974, or are they still claiming that the Act exempts business overdrafts?

Section 74 (1B) states:

[QUOTE]Where an agreement that falls within subsection (1)(b) is an authorised business overdraft agreement the following provisions apply—

(a)section 55B (assessment of creditworthiness);
(b)section 56 (antecedent negotiations);
(c)section 60 (regulations on form and content of agreements);
(d)section 61B (duty to supply copy of overdraft agreement).[/QUOTE]

That lattermost section, 61B ([URL="http://www.legislation.gov.uk/ukpga/1974/39/section/61B"][B]link[/B][/URL]), looks rather interesting - especially at paragraph (3):

[QUOTE][B]61B Duty to supply copy of overdraft agreement[/B]

(1)Where an authorised business overdraft agreement or an authorised non-business overdraft agreement has been made, a document containing the terms of the agreement must be given to the debtor.

(2)The creditor must provide the document referred to in subsection (1) to the debtor before or at the time the agreement is made unless—

(a)the creditor has provided the debtor with the information referred to in regulation 10(3) of the Consumer Credit (Disclosure of Information) Regulations 2010, in which case it may be provided after the agreement is made,

(b)the creditor has provided the debtor with the information referred to in regulation 10(3)(c), (e), (f), (h) and (k) of those Regulations, in which case it must be provided immediately after the agreement is made, or

(c)the agreement is an agreement of a description referred to in regulation 10(4)(b) of those Regulations, in which case it must be provided immediately after the agreement is made.

(3)If the requirements of this section are not observed, the agreement is enforceable against the debtor on an order of the court only (and for these purposes a retaking of goods or land to which the agreement relates is an enforcement of the agreement).[/QUOTE]
Of course, they can register a default against the name of the account holder but, if the account was held by a limited company, they cannot properly register a default against any company director concerning this account.

[mgfboy]

Re: Overdrafts - CCA Information

[QUOTE=Never-In-Doubt;160146]Yea but that doesn't mean much, they can't enforce it. A default is different to enforcement action. :confused

I really don't get what you're asking...?[/QUOTE]

As I said I have a headache so forgive me for being thick.

I realise that a loan being in default , is different to it being enforceable. The question I was asking is does the fact the OD is in default effect the position on using the agurements noted above. I know it doesn't effect normal loans and Credit cards but as we know OD's are different.

Sorry if I'm not being clear.

[Never-In-Doubt]

Re: Overdrafts - CCA Information

[QUOTE=mgfboy;160145]So I'm probably being a bit thick ( I have a head ache!!!), on our hsbc OD , if they ever get around to trying to enforce the debt we cant use this arguments as they have already defaulted it.[/QUOTE] Yea but that doesn't mean much, they can't enforce it. A default is different to enforcement action. :confused

I really don't get what you're asking...?

[mgfboy]

Re: Overdrafts - CCA Information

[QUOTE=Never-In-Doubt;160144]It doesn't.

It doesn't.

:beer[/QUOTE]

So I'm probably being a bit thick ( I have a head ache!!!), on our hsbc OD , if they ever get around to trying to enforce the debt we cant use this arguments as they have already defaulted it.

[Never-In-Doubt]

Re: Overdrafts - CCA Information

[QUOTE=mgfboy;160142]how does this effect a OD in default already [/QUOTE] It doesn't.

[QUOTE=mgfboy;160142]how does it effect sole trader/ limited company business accounts????[/QUOTE] It doesn't.

:beer

[mgfboy]

Re: Overdrafts - CCA Information

This all looks great, as far as I'm concerned anything that helps me to sick one to HSBC is great. Couple of questions though, how does this effect a OD in default already and how does it effect sole trader/ limited company business accounts????

[Undercover Elsa]

Re: Overdrafts - CCA Information

Just to tie this in...I sent a standard CCA Request for my OD (before Niddy did the OD specific one) and have just got the response that due to the age of the a/c they can't provide it. :eyelash
Linky: [URL]http://forums.all-about-debt.co.uk/showthread.php?p=157800#post157800[/URL]
Shep x

[CleverClogs (RIP)]

Re: DNW's UE Diary

[QUOTE=Drowning Not Waving;159444]Thank you CC ... I actually understood all of your post for once!!! :blush2 :lol[/QUOTE]
I'm sure I'll soon remedy that. :rotf

[DNW]

Re: Overdrafts - CCA Information

Fantastic :clap

In some perverse kind of way, I'm actually looking forward to testing the waters with this as and when it comes to it - nothing ventured, nothing gained and all that :geeky

[Never-In-Doubt]

Re: Overdrafts - CCA Information

[COLOR=DarkOrange][B]Copy of Post 1[/B][/COLOR]

[B]Part 1 - The CCA Request[/B]

Ok, so the main thing - a type of CCA Request is necessary in order to get things going yet because this does not conform with usual s.77, s.78 & s.79 requests we [COLOR=Red]do not need to send the £1 payment[/COLOR] as we're kinda playing dumb at this point (as far as getting the original request over); the actual CCA Request for the Overdraft reads something like this:[INDENT] Dear Sirs,

[B]Ref: XXXXXXXX[/B]

Under the provisions of The Consumer Credit (EU Directive) Regulations 2010 and also c.39 (s.74 (A&B) (VA)) CCA(1974) I wish to formally request a copy of the original overdraft agreement and relevant paperwork that you should be sending me annually, for the above numbered bank account with [[B][COLOR=DarkOrange]enter bank name here[/COLOR][/B]].

As I held what can only be regarded as an 'Agreed Overdraft', which has now reverted to an 'Unauthorised Overdraft' then the lending becomes regulated in line with c.39 Part VA (s.74) (s.1(b)) CCA1974 meaning the normal rules and CCA(1974) protection applies to this account.

You should be sending an annual reminder to me regards the overdraft, as well as copies of the original agreement made and an annual renewal form that contains the relevant prescribed terms that are clearly outlined in s.74(A)2(a,b,c,d,e). I highlight this provision for your perusal;[INDENT][B]s.74A(2)[/B] The current account agreement must include the following information at the time it is made:[INDENT][B](a)[/B]the rate of interest charged on the amount by which an account-holder overdraws on the current account or exceeds the pre-arranged overdraft limit,
[B](b)[/B]any conditions applicable to that rate,
[B](c)[/B]any reference rate on which that rate is based,
[B](d)[/B]information on any changes to the rate of interest (including the periods that the rate applies and any conditions or procedure applicable to changing that rate), and
[B](e)[/B]any other charges payable by the debtor under the agreement (and the conditions under which those charges may be varied).[/INDENT][/INDENT]You should also be paying attention to s.74(B)(2) which reads, I quote;[INDENT][B]s.74B(2)[/B] The matters referred to in subsection (1) are:[INDENT][B](a)[/B]the fact that the current account is overdrawn or the overdraft limit has been exceeded,
[B](b)[/B]the amount of that overdraft or excess,
[B](c)[/B]the rate of interest charged on it, and
[B](d)[/B]any other charges payable by the debtor in relation to it (including any penalties and any interest on those charges).
[/INDENT][/INDENT]Therefore in line with the above, please could you send me what you should have been doing annually and have not been, to allow me to take whatever action I deem appropriate.

I trust that I have set out the position clearly and I await your response with the requested information.

Yours faithfully,


[SIZE=5][B][COLOR=DarkOrange]Sign Digitally
[/COLOR][/B][/SIZE][/INDENT][B]
Part 2 - The Response[/B]

You will get a reply usually saying 'Go Away - The exclusion of Current Accounts fall within Part V of the CCA and is set out in section 74(1)(b)' but that actually proves our point and as you have seen with the CCA Request, we rely on that to demand the documents referred herein.

So, in response to such a denial we would respond as follows with the CCA Request Follow Up which reads something like this;[INDENT]Dear Sirs,

[B]Ref: XXXXXXXX[/B]

I refer to previous correspondence and in particular my request for information under the provisions of The Consumer Credit (EU Directive) Regulations 2010; and also c.39 (s.74 (A&B) (VA)) CCA(1974).

I formally requested a copy of the required documents that should have been sent to me annually by [[B][COLOR=DarkOrange]enter bank name here[/COLOR][/B]] and am to date still awaiting such documents.

Until such time as I am in receipt of the requested information, this account cannot be enforced and remains in an unenforceable position because the basic underlying principles of legislation are being ignored. I attach a copy of my original request again, and hope that this time you'll take me more seriously and actually send out historical data as required within the legislative statute that is the Consumer Credit Act (1974).

I look forward to your response within the next 28 days with the requested information.

Yours faithfully,


[SIZE=5][B][COLOR=DarkOrange]Sign Digitally[/COLOR][/B][/SIZE]
[/INDENT][B]
Note 1 - Additional Points of Reference[/B]

We are relying on specific guidelines here and this is untested and we cannot guarantee any level of success (or failure) by taking the above CCA Request approach and therefore you should consider this attack as a last line of defence - remember never take the fight to a lender, always defend their attack with legislative re-buffs such as the overdraft CCA Request.

The specific guidelines used are as follows:

c.39 (s.74) CCA 1974 (as amended) Part VA ---> [B][URL="http://www.legislation.gov.uk/ukpga/1974/39/part/VA"]Part VA - Consumer Credit Act 1974[/URL][/B]
[QUOTE]
[B]s.74A(2)[/B] 
The current account agreement must include the following information at the time it is made:[INDENT][B](a)[/B]the rate of interest charged on the amount by which an account-holder overdraws on the current account or exceeds the pre-arranged overdraft limit,
[B](b)[/B]any conditions applicable to that rate,
[B](c)[/B]any reference rate on which that rate is based,
[B](d)[/B]information on any changes to the rate of interest (including the periods that the rate applies and any conditions or procedure applicable to changing that rate), and
[B](e)[/B]any other charges payable by the debtor under the agreement (and the conditions under which those charges may be varied).[/INDENT][B]s.74B(2)[/B] 
The matters referred to in subsection (1) are:[INDENT][B](a)[/B]the fact that the current account is overdrawn or the overdraft limit has been exceeded,
[B](b)[/B]the amount of that overdraft or excess,
[B](c)[/B]the rate of interest charged on it, and
[B](d)[/B]any other charges payable by the debtor in relation to it (including any penalties and any interest on those charges).[/INDENT][/QUOTE]We then rely on The Consumer Credit (Amendment) Regulations 2010 which is what the above replaced, in particular s.9:[INDENT]---> [B][URL="http://www.legislation.gov.uk/uksi/2010/1969/regulation/9/made"]s.9 - The Consumer Credit (Amendment) Regulations 2010[/URL][/B]
[/INDENT]Make sense? If not post a reply and we'll try and help. Best of luck.

Niddy [IMG]http://forums.all-about-debt.co.uk/images/smilies/Generic%20Smileys/icon_getting-high.gif[/IMG]