Unenforceable Overdrafts - CCA Information

[DNW]

Re: DNW's UE Diary

[QUOTE=Drowning Not Waving;103753][SIZE=6][COLOR=DarkOrchid][COLOR=Magenta]Natwest Overdraft[/COLOR][/COLOR][/SIZE]

[code]
[B][FONT=Courier New]Name[/FONT][/B][FONT=Courier New] - Natwest[/FONT]
[FONT=courier new][B]Type of account[/B] - Overdraft[/FONT]
[FONT=courier new][B]Date commenced[/B] - Oct 2000[/FONT]
[FONT=courier new][B]Approx balance[/B] - £2,181[/FONT]
[FONT=courier new][B]Date last paid[/B] - Mar-11 [/FONT]
[FONT=courier new][B]Arrangement/not paying[/B] - Not paying[/FONT]
[FONT=courier new][B]Status[/B] - In Arrears [/FONT]
[FONT=courier new][B]Account owner[/B] - Lender
[/FONT]
[/code][B]Key:[/B]
[COLOR=Red]Them[/COLOR]
[COLOR=Blue]Me[/COLOR]
[COLOR=Lime]Other[/COLOR]

[B][U]Activity[/U][/B]
[LIST=1][*][COLOR=red]31/05/11 Letter refusing to accept I&E form[/COLOR][*][COLOR=red]04/07/11 Letter reminding over OD limit and chages now £6 per day[/COLOR][*][COLOR=red]12/07/11 Letter asking for contact to discuss[/COLOR][*][COLOR=Blue]12/07/11 Phone call - Natwest won't default until balance reaches -£2250. I&E completed verbally[/COLOR][*][COLOR=red]04/07/11 Overlimit OD - £6 per day charges[/COLOR][*][COLOR=red]02/08/11 Letter asking for I&E[/COLOR][*][COLOR=red]04/08/11 Unarranged OD fee warning[/COLOR][*][COLOR=red]05/08/11 Breakdown of OD fees[/COLOR][*][COLOR=red][COLOR=Blue]30/08/11 Ceased token payment (to hurry along the default)[/COLOR]
[/COLOR][*][COLOR=red]12/09/11 Letter from Natwest - please contact us (ignored)[/COLOR][*][COLOR=red]29/09/11 [/COLOR][COLOR=red]Letter from Natwest - please contact us (ignored)[/COLOR][*][COLOR=red]11/10/11 Letter from Power 2 Contact - please contact us (ignored)[/COLOR][*][COLOR=red]19/10/11 Doorstep visit from Power 2 Contact (answered and contact card left for OH)[/COLOR][*][COLOR=red]19/10/11 [COLOR=Blue]Letter sent to Natwest - No visits and please consider stopping/refunding charges[/COLOR][/COLOR][*][COLOR=red]04/11/11 Letter from Natwest - they're sorry I had to complain, they're looking into it[/COLOR][*][COLOR=red]14/11/11 Letter from Natwest - they're still investigating complaint
[/COLOR][*][COLOR=red]16/12/11 Letter from Natwest - Notice of intention to file a default, and DN received[/COLOR][*][COLOR=red]19/12/11 Letter from Natwest - Notice of default sums[/COLOR] (they charged £30 to issue a DN!)[*][COLOR=red]05/01/12 Letter from Natwest - It's not to late to contact us to sort this out[/COLOR][*][COLOR=red]18/01/12 Letter from Natwest - Terminating overdraft agreement and demand the account is paid in full. However they also offer the option to agree a mutually acceptable repayment plan.[/COLOR][*][COLOR=red][COLOR=Blue]31/01/12 Sent to Natwest - letter requesting refund of charges and resumed token payments[/COLOR]
[/COLOR][*][COLOR=red]10/02/12 Letter from Westcot - They are now dealing with this account and would like to know when we're going to pay it. [/color][/LIST][/QUOTE]


[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][QUOTE=Never-In-Doubt;157636]Dear Sirs,

[B] Ref: xxxxxxx[/B]

I acknowledge receipt of your letter and I would like to point out that regardless of the provisions of sections 78 you seem to have forgotten about The Consumer Credit (EU Directive) Regulations (2010) and also c.39 (s.74 (A&B) (VA)) CCA(1974).

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;[INDENT][B]s.74A(2) The current account agreement must include the following information at the time it is made:[/B]

[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]Please also pay attention to s.74(B)(2) which reads;[INDENT][B] s.74B(2) The matters referred to in subsection (1) are:[/B]
[/INDENT][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]I trust that I have set out my position, and the position of current legislation that is the Consumer Credit Act 1974.

On to another matter, regards your continual harassment by telephone - you've now forced me to get rid of my old number, it's pointless keeping it when you think it's a personal hotline to annoy and harass me; therefore I do have access to a number which you should only use if you cannot get hold of me by mail, as I do request that all correspondence be done via letter to allow me an audit trail in case of future misconduct.

This contact number is 08719152718. You should take this as formal notice that my previous number is no longer in use by me and any attempts to call it will be classed as undue harassment to which relevant complaints will be sent to your governing regulators. I do request you only communicate in writing however should you feel the need to try and speak to me please leave a message and I shall endevour to return your call if I deem it appropriate, otherwise I will respond in writing.

If you continue to harass me by telephone, you will be in breach of the Communications Act (2003) s.127 and I will have no alternative but to report you to OFCOM, Trading Standards and The Office of Fair Trading, meaning that you may be liable to a substantial fine and/or other sanctions as they see fit. Be advised that any further telephone calls from your company may be recorded and used in evidence.

As I now formally demand all further correspondence from your company to be made in writing only, I would like to also make you aware that any additional harassment will put you in breach of Section 40 of the Administration of Justice Act 1970, and the Protection from Harassment Act 1997.

I trust I have made myself and my position clear and look forward to receiving the requested documents within the next 14 days, or your confirmation that you do not hold any such documents.

Yours faithfully,

[SIZE=5][B]
Sign Digitally[/B][/SIZE][/QUOTE]

[/QUOTE]

[pooksthebear]

Re: Pookies UE Diary

[QUOTE=Never-In-Doubt;157660]Yes ignore for now, if necessary I'll sort you a suitable reply....

Ok will do. Just noticed...Connect is part of Mackenzie Hall.. so much for closing file after 40 days!

yes send the same £1 PO from last time - dont get a new one.[/QUOTE]

Yep still got that and they are good for 3 months so still in date.

Thank you ;)

[Never-In-Doubt]

Re: Pookies UE Diary

[QUOTE=pooksthebear;157656]Right.. while I am on a roll should I do anything about this:

6th Dec got letter from Mackenzie Hall sending back my postal order saying they had requested CCA from Capquest and if no contact within 40 days they would close my file. 7th Dec demand for payment from Mackenzie Hall. 12th Dec demand for payment and doorstep threat from Meritforce (on behalf of Capquest). 12th Jan full and final offer made from Mackenzie Hall. 30th Jan demand for payment from Connect on behalf of Capquest. Still no CCA. I have ignored all (except doorstep threat, sent a template threat letter in response) Am I ok to keep ignoring?[/QUOTE] Yes ignore for now, if necessary I'll sort you a suitable reply....

[QUOTE=pooksthebear;157656]Also.. seeing as Cabot sent my postal order back with my request for CCA (stating they didn't have to provide as overdraft)..well as I'm now sending them the above letter, do I need to send a £1 postal order with the letter?[/QUOTE] yes send the same £1 PO from last time - dont get a new one.

[pooksthebear]

Re: Pookies UE Diary

[QUOTE=Never-In-Doubt;157650]I know, I know :lol :lol

Just kidding, but see what I mean how mine is more direct and to the point? Trust me, see what that does ;W[/QUOTE]

Its brilliant Niddy, you must have one heck of a brain!! I thought I was good at letter writing till I came across yours!!

[Never-In-Doubt]

Re: Pookies UE Diary

[QUOTE=pooksthebear;157639]Niddy you are brilliant!!!!! Thank you :applause[/QUOTE] I know, I know :lol :lol

Just kidding, but see what I mean how mine is more direct and to the point? Trust me, see what that does ;W

[pooksthebear]

Re: Pookies UE Diary

Niddy you are brilliant!!!!! Thank you :applause

[Never-In-Doubt]

Re: Pookies UE Diary

^^^^^

Send my version above, it's a lot better with less waffling and more direct threats that actually hold substance. The Harrison/Link judgment is irrelevant really - so took it out :beer

Trust me, send the above version :clap

[Never-In-Doubt]

Re: Pookies UE Diary

Dear Sirs,

[B] Ref: xxxxxxx[/B]

I acknowledge receipt of your letter and I would like to point out that regardless of the provisions of sections 78 you seem to have forgotten about The Consumer Credit (EU Directive) Regulations (2010) and also c.39 (s.74 (A&B) (VA)) CCA(1974).

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;[INDENT][B]s.74A(2) The current account agreement must include the following information at the time it is made:[/B]

[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]Please also pay attention to s.74(B)(2) which reads;[INDENT][B] s.74B(2) The matters referred to in subsection (1) are:[/B]
[/INDENT][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]I trust that I have set out my position, and the position of current legislation that is the Consumer Credit Act 1974.

On to another matter, regards your continual harassment by telephone - you've now forced me to get rid of my old number, it's pointless keeping it when you think it's a personal hotline to annoy and harass me; therefore I do have access to a number which you should only use if you cannot get hold of me by mail, as I do request that all correspondence be done via letter to allow me an audit trail in case of future misconduct.

This contact number is 08719152718. You should take this as formal notice that my previous number is no longer in use by me and any attempts to call it will be classed as undue harassment to which relevant complaints will be sent to your governing regulators. I do request you only communicate in writing however should you feel the need to try and speak to me please leave a message and I shall endevour to return your call if I deem it appropriate, otherwise I will respond in writing.

If you continue to harass me by telephone, you will be in breach of the Communications Act (2003) s.127 and I will have no alternative but to report you to OFCOM, Trading Standards and The Office of Fair Trading, meaning that you may be liable to a substantial fine and/or other sanctions as they see fit. Be advised that any further telephone calls from your company may be recorded and used in evidence.

As I now formally demand all further correspondence from your company to be made in writing only, I would like to also make you aware that any additional harassment will put you in breach of Section 40 of the Administration of Justice Act 1970, and the Protection from Harassment Act 1997.

I trust I have made myself and my position clear and look forward to receiving the requested documents within the next 14 days, or your confirmation that you do not hold any such documents.

Yours faithfully,

[SIZE=5][B]
Sign Digitally[/B][/SIZE]

[pooksthebear]

Re: Pookies UE Diary

[QUOTE=Never-In-Doubt;157616]Hiya

Please post template text here (remove personal info) - let me cast my eyes, just want to ensure you are not amending it to include acknowledgement as all my templates are worded not to include acknowledgement.....

Please.... I'll just check it over for you :clap[/QUOTE]

Hi, yes Flower is right it was post 160. Is it ok?

[Never-In-Doubt]

Re: Pookies UE Diary

Hiya

Please post template text here (remove personal info) - let me cast my eyes, just want to ensure you are not amending it to include acknowledgement as all my templates are worded not to include acknowledgement.....

Please.... I'll just check it over for you :clap

[pooksthebear]

Re: Pookies UE Diary

[QUOTE=Flowerpower;157592]Best of luck with Cabot !Pookie! :luck[/QUOTE]

Thanks! I feel quite good about sending them the letter Niddy did (that I've pinched off someone else but changed slightly!) It will give them something to think about wont it! Isn't Niddy fantastic!! Well you all are really, I am very very grateful for all the help everyone is giving me.

Pooks

[pooksthebear]

Re: Pookies UE Diary

[QUOTE=Never-In-Doubt;157600]If you read this beforehand, then actually add a line to the template at the very bottom (above the 'yours faithfully') as follows:[INDENT]"Please note my new contact number is 08719152718. You should take this as formal notice that my previous number is no longer in use by me and any attempts to call it will be classed as undue harassment to which relevant complaints will be sent to your governing regulators. I do request you communicate in writing however should you feel the need to try and speak to me please leave a message and I shall endevour to return your call if I deem it appropriate, otherwise I will respond in writing"
[/INDENT]Best of luck.[/QUOTE]

Niddy you are bloody brilliant with words!! Thank you, I will amend letter and add that tomorrow :grinning

[Never-In-Doubt]

Re: Pookies UE Diary

[QUOTE=pooksthebear;157172]Good plan.. i will put that number at the top of the new cca letter and telephone harassment letter im sending them tomorrow!![/QUOTE] If you read this beforehand, then actually add a line to the template at the very bottom (above the 'yours faithfully') as follows:[INDENT]"Please note my new contact number is 08719152718. You should take this as formal notice that my previous number is no longer in use by me and any attempts to call it will be classed as undue harassment to which relevant complaints will be sent to your governing regulators. I do request you communicate in writing however should you feel the need to try and speak to me please leave a message and I shall endevour to return your call if I deem it appropriate, otherwise I will respond in writing"
[/INDENT]Best of luck.

[pooksthebear]

Re: Pookies UE Diary

Right here is my letter, I am not sure where to put those bits in (quoted above) so ive left them out.


Dear Sirs,

Ref: xxxxxxx

I acknowledge receipt of your letter and I would like to point out that regardless of the provisions of sections 77-79 you seem to have forgotten about The Consumer Credit (EU Directive) Regulations 2010 and also c.39 (s.74 (A&B) (VA)) CCA(1974).

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.

You go on to mention that "The exclusion of Current Accounts falling into Part V of the CCA is set out in section 74(1)(b)" . I have read this and I would like to know what makes you exempt? Before quoting legislation, please try and understand the principle behind it first. Your claim regards s.74(1)(b) is not in context based on the fact the provision within s.74(A)(2) has failed; I highlight this provision for your perusal;

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, I quote;
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 clearly? I await your response with the requested information, as per my original letter (assuming you have the information, of course).

On another matter, that of telephone harassment The quantity and frequency of the telephone calls I have received from your company is beyond a joke.

I now require all further correspondence from your company to be made in writing only. I am of the view that your continued harassment of me by telephone puts you in breach of Section 40 of the Administration of Justice Act 1970, and the Protection from Harassment Act 1997.

I ought to draw your attention to the recent Harrison v Link Financial case in which HH Judge Chambers outlined the predatory way in which the account holder was hounded;

I quote, from this judgment;

Cumulatively and damningly is what I find to be the way that MBNA and the Defendant went about recovering their debt. I am satisfied that the Claimant’s description of the way that he was hounded by his creditors is essentially correct not least in the use of “non-traceable” telephone calls. It seems to me that such conduct has no proper function in the recovery of consumer debt.

If you continue to harass me by telephone, you will also be in breach of the Communications Act (2003) s.127 and I will report you to OFCOM, Trading Standards and The Office of Fair Trading, meaning that you may be liable to a substantial fine and/or other sanctions as they see fit. Be advised that any further telephone calls from your company may be recorded and used in evidence and I expect this harassment to cease immediately.

Yours faithfully,

[pooksthebear]

Re: Pookies UE Diary

[QUOTE=CleverClogs;157024]As one might expect of Cabot, they have been somewhat economical with the actualité - [URL="http://www.legislation.gov.uk/ukpga/1974/39/section/74"][B]link[/B][/URL]:

They seem either not to know, or not to care, that paragraph (1) now contains the words "[B]Except as provided in subsections (1A) to (2)[/B]". Subsection (1C) applies to your overdraft:

It's probably anyone's guess quite why Cabot continues to claim that section 74(1)(b) excludes overdrafts as it did before the law was changed; I suspect it may be because they do not have a copy of the documents, cannot obtain a copy of the documents or even that some of the documents may no longer exist.[/QUOTE]

Thank you so much Cleverclogs, I have copied the letter that Niddy did for Flossy and rehashed it a bit, I will now quote some of the above too ... just to reinforce the issue. Im gonna tag the telephone harassment letter onto the bottom.. again amended a bit. Hopefully that will stop them in their tracks as they are driving me insane with a dozen, if not more, calls every single day!! I will post it up in a mo and it would be great if you can let me know what you think. Thanks :grin