Unenforceable Overdrafts - CCA Information

[Never-In-Doubt]

Re: Overdrafts

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New thread - Niddy updating with posts from around the forum[/B]
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[Never-In-Doubt]

Re: DNW's UE Diary

[QUOTE=CleverClogs;159373]Hence, the bank :toss might be able to argue that the law applicable at the time did largely exempt overdraft agreements from the Act.[/QUOTE]

[QUOTE=Never-In-Doubt;159376]No quite, but it's better than sending the wrong info off as we either ignore or use s.77/s.78 templates so I am thinking it may be best to have a simple overdraft CCA section - i'll do a new template etc for the request of information in line with c.39 (s.74) etc thus allowing us at least the right templates and wording to be given a fighting chance :angelic[/QUOTE] Actually it would apply retrospectively wouldn't it as changes in legislation warrant this so although we couldn't utilise errors retrospectively, we can argue that they comply using current legislation which regards c.39 (s.74) is, lets not forget, a substitute for the The Consumer Credit (Amendment) Regulations 2010 (1969)(Reg.9) as per ---> [B][URL="http://www.legislation.gov.uk/uksi/2010/1969/regulation/9/made"]The Consumer Credit (Amendment) Regulations 2010[/URL][/B]

[PlanB]

Re: DNW's UE Diary

[QUOTE=CleverClogs;159373] Also, as you know, the wording of the changes is rather weak and failure by the creditor to comply with their obligations [B]does not necessarily render a debt unenforceable[/B]. [/QUOTE]

Agreed. But do the thick DCAs know that? I've had a HSBC overdraft in orbit for two years now by requesting documents. It gets sent straight back to the bank each time. Give it 3.5 more years and I don't care what the CCA obliges the bank to do or not because it should be SB by then :luck

[Never-In-Doubt]

Re: DNW's UE Diary

[QUOTE=CleverClogs;159373]Also, as you know, the wording of the changes is rather weak and failure by the creditor to comply with their obligations does not necessarily render a debt unenforceable. :mad[/QUOTE]

No quite, but it's better than sending the wrong info off as we either ignore or use s.77/s.78 templates so I am thinking it may be best to have a simple overdraft CCA section - i'll do a new template etc for the request of information in line with c.39 (s.74) etc thus allowing us at least the right templates and wording to be given a fighting chance :angelic

[CleverClogs (RIP)]

Re: DNW's UE Diary

[QUOTE=Never-In-Doubt;159365]Ok, we have established this mate :lol

Maybe a new thread would be the best thing, see if you're bored later fancy gathering the links and PMing me them and I will start a whole thread on it, or I will do it later when I finish site updates :beer[/QUOTE]
I'm not sure how the changes to the Consumer Credit Act 1974 would apply retrospectively - that is, whether they would apply to existing overdraft agreements as well as new agreements, or if they would apply to overdraft agreements that have already been terminated.

Hence, the bank :toss might be able to argue that the law applicable at the time did largely exempt overdraft agreements from the Act.

Also, as you know, the wording of the changes is rather weak and failure by the creditor to comply with their obligations does not necessarily render a debt unenforceable. :mad

[CleverClogs (RIP)]

Re: DNW's UE Diary

[QUOTE=Flowerpower;158241]No point in sending a CCA request and waiting for them to tell you it doesn't apply. You could just send the letter you quoted without the first para referring to a response you haven't had from them, the rest is the info they are supposed to provide even though there is no CCA as such.[/QUOTE]
Whilst there would be no Consumer Credit Agreement in the way that there would be with a credit token account or a fixed sum loan, overdrafts are now [B]not[/B] exempt from the Consumer Credit Act 1974 (as amended).

The creditor does have to provide certain documents, depending upon the type of overdraft and how much notice is required for repayment.

[B][URL="http://www.legislation.gov.uk/ukpga/1974/39/part/VA"]Consumer Credit Act 1974[/URL][/B]

[Never-In-Doubt]

Re: DNW's UE Diary

[QUOTE=CleverClogs;159363][SIZE=7][SIZE=2]Wrong[/SIZE].[/SIZE][/QUOTE] Ok, we have established this mate :lol

Maybe a new thread would be the best thing, see if you're bored later fancy gathering the links and PMing me them and I will start a whole thread on it, or I will do it later when I finish site updates :beer

Thanks CC :clap

[PlanB]

Re: DNW's UE Diary

[QUOTE=CleverClogs;159363][SIZE=7]Wrong.[/SIZE][/QUOTE]

Spoken like an expert :rotfpmsl

[CleverClogs (RIP)]

Re: DNW's UE Diary

[QUOTE=Drowning Not Waving;158231]A couple more questions before I respond to Natwest - should I send a CCA request and when they tell me to go away and not be so silly there is no such thing as a CCA for an OD,[/QUOTE]

[QUOTE=oscar;158239]As overdrafts are CCA exempt, they would actually be correct.[/QUOTE]
[SIZE="7"]Wrong.[/SIZE]

[Never-In-Doubt]

Re: DNW's UE Diary

[QUOTE=Drowning Not Waving;159320]I think I've taken out the irrelevant parts, but would be glad if someone could cast an eye over this before I send it off to Natwest (should I even be sending it yet or waiting until they start taking more action than just passing it over to Westcots? :confused:[/QUOTE] No do not send that, you are taking the fight to them by doing so - just sit tight and await action from them. :beer

[Never-In-Doubt]

Re: DNW's UE Diary

[QUOTE=Drowning Not Waving;159222][B]UPDATE[/B]


[COLOR=Red]27/01/12 Letter received - Marbles - [/COLOR]

I'm not sure if this means that all Marbles accounts have been transferred to Progressive or whether this is a Notice of Assignment?[/QUOTE] Yes I have posted about this previously - hang on I'll get the links to the post!

---> [URL="http://forums.all-about-debt.co.uk/showpost.php?p=158798&postcount=49"]allaboutFORUMS - View Single Post - mehim's UE Diary[/URL]

[DNW]

Re: DNW's UE Diary

[QUOTE=Drowning Not Waving;157732][B]UPDATE[/B]

[COLOR="Red"]
15/02/12 - Letter from Natwest - "Thanks for your letter of 31/01/12, Westcot are now dealing with your account and we have passed your letter to them and they will contact you shortly.... When charges and interest were applied to the account they were rightfully due within the T&C."[/COLOR]


I'm planning on sending a SAR to Natwest to check exactly what charges have been applied, but I was wondering if I should also send something similar to this post (also in relation to an OD) - linky --> [url="http://forums.all-about-debt.co.uk/showpost.php?p=157636&postcount=183"]allaboutFORUMS - View Single Post - Pookies UE Diary[/url]
I'd take out the part about harassment as that hasn't been an issue, I haven't sent a CCA request so would I need to take out some of the first paragraph also.

Thoughts?[/QUOTE]



I think I've taken out the irrelevant parts, but would be glad if someone could cast an eye over this before I send it off to Natwest (should I even be sending it yet or waiting until they start taking more action than just passing it over to Westcots? :confused:


[QUOTE]
I write further to your letter of 10/02/12.

As I had what can only be classed as an agreed overdraft, then the lending becomes regulated in line with Part VA (s.74) (s.1(b)) meaning the normal rules and CCA(1974) protection applies. The lender also needs to send 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). As nothing of the sort has ever been recorded as received by myself, this account is in fact unenforceable.

Please pay attention to the following amendments to the CCA1974;

s.74A(2) The current account agreement must include the following information at the time it is made:

(a) 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) any conditions applicable to that rate,
(c) any reference rate on which that rate is based,
(d) 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
(e) any other charges payable by the debtor under the agreement (and the conditions under which those charges may be varied).


Please also pay attention to s.74(B)(2) which reads;

s.74B(2) The matters referred to in subsection (1) are:
(a) the fact that the current account is overdrawn or the overdraft limit has been exceeded,
(b) the amount of that overdraft or excess,
(c) the rate of interest charged on it, and
(d) any other charges payable by the debtor in relation to it (including any penalties and any interest on those charges).

I trust that I have set out my position, and the position of current legislation that is the Consumer Credit Act 1974 and look forward to receiving the requested documents within the next 14 days, or your confirmation that you do not hold any such documents.
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[oscar]

Re: DNW's UE Diary

[QUOTE=Drowning Not Waving;158231] should I send a CCA request and when they tell me to go away and not be so silly there is no such thing as a CCA for an OD, [/QUOTE]

As overdrafts are CCA exempt, they would actually be correct.

[DNW]

Re: DNW's UE Diary

Thank you CC those are really useful links :happy (and I actually understood all of your post for once!!! :blush2 :lol


A couple more questions before I respond to Natwest - should I send a CCA request and when they tell me to go away and not be so silly there is no such thing as a CCA for an OD, then hit them with a letter such as above?

When I do send the above, should I include quotes of sections 86C(5), 86E(6) and section 173 - or just mention that I'm aware that they have breached those sections?

[CleverClogs (RIP)]

Re: DNW's UE Diary

[QUOTE=Drowning Not Waving;157732][COLOR="Red"]
15/02/12 - Letter from Natwest - "Thanks for your letter of 31/01/12, Westcot are now dealing with your account and we have passed your letter to them and they will contact you shortly.... When charges and interest were applied to the account they were rightfully due within the T&C."[/COLOR][/QUOTE]

Nonsense.

[QUOTE]I'm planning on sending a SAR to Natwest to check exactly what charges have been applied, but I was wondering if I should also send something similar to this post (also in relation to an OD) - linky --> [url="http://forums.all-about-debt.co.uk/showpost.php?p=157636&postcount=183"]allaboutFORUMS - View Single Post - Pookies UE Diary[/url]
I'd take out the part about harassment as that hasn't been an issue, I haven't sent a CCA request so would I need to take out some of the first paragraph also.

Thoughts?[/QUOTE]
I'd say that all the first paragraph should be omitted, but I'd also wish to know why the NatWest onanists seem to think that compliance with the Consumer Credit Act 1974 is optional. This applies especially to sections 86C (5) - [URL="http://www.legislation.gov.uk/ukpga/1974/39/section/86C"][B]link[/B][/URL] and 86E (6) - [URL="http://www.legislation.gov.uk/ukpga/1974/39/section/86E"][B]link[/B][/URL]) which expressly state that no fee shall be payable by the debtor for preparation or provision of arrears or default notices, and to section 173 - [URL="http://www.legislation.gov.uk/ukpga/1974/39/section/173"][B]link[/B][/URL] - which means that the CCA trumps contractual terms.