Unenforceable Overdrafts - CCA Information

[pooksthebear]

Re: Pookies UE Diary

[QUOTE=Drowning Not Waving;156018]I'm also very interested to know if there's a template/letter to be sent - our overdraft account has just been passed to DCA a couple of days ago and I've sent nothing in response as yet.[/QUOTE]

Yeah I really could do with sending something to Cabot with the telephone harassment letter, saves on two lots of recorded delivery haha.

On a more serious note, can anyone tell us please if there is a new template letter containing the correct legislation/reg number to quote. If I send them another CCA letter they are just going to return it saying they don't have to comply as I believe the letter refers to a different section of the law to the new bit that now includes bank account overdrafts. Also, will the new legislation cover my overdraft debt seeing as this debt goes back quite a number of years?

Thanks, Pooks

[DNW]

Re: DNW's UE Diary

[QUOTE=Never-In-Doubt;156036]Hiya

Before commencing any payments please speak to myself or I2D as we tend to follow what the right thing to do is - you made an error of judgment and should not have recommenced payments here.

However not a lot we can do, it's done now.

I would either continue repaying small token payments now, the overdraft fight is still quite new and yes, you will notice on this thread I have touched on it a bit - read the first couple of pages leading up to the template here (---> [URL="http://forums.all-about-debt.co.uk/showthread.php?p=149318#post149318"]Flossy UE Diary YB Hassle - Page 3 - allaboutFORUMS[/URL] ) however banks etc still fob us off and [B]may [/B]still take action.

See if you can get a refund of charges etc first - that should bring the balance down a lot.....[/QUOTE]



Thanks Niddy, I was just treating it the same as all our other enforceables - they've all been getting token payments since being deemed enforceable so long as they had issued DN - Natwest were just slower to default. While the (en) creditors have been receiving token payments, everything has been exceptionally quiet so it's worth £1 a month for the longer term plan (it's my understanding that the best I can hope for with enforceable debts is for them to drag on and on until they're eventually sold off and I can hit them with low F&F as and when they start leaning more heavily).

So at the moment I'm just sitting tight and wait for Westcot to start leaning more heavily.

How would I find out what charges have been added? Or should I post in the reclaiming section about that?

[pooksthebear]

Re: Pookies UE Diary

[QUOTE=Flowerpower;156435]You may want to look at this --->[B][COLOR=Purple][URL="http://forums.all-about-debt.co.uk/showpost.php?p=149318&postcount=44"]allaboutFORUMS - View Single Post - Flossy UE Diary YB Hassle[/URL][/COLOR][/B] - although it would need to be adapted to suit.[/QUOTE]

Thanks for this but I am confused.... I dont know how to copy bits of threads but on page 4 of this thread I put a post about my reply from a couple of creditors including Cabot in relation to my bank account overdraft... here is what I put and Niddy's response.. it was only a few weeks ago so im confused as to why your's is different to mine when they are both with Cabot and both in relation to overdrafts.

[I][B]Cabot who have sent my postal order back and state there is no need for them to provide a copy of my credit agreement as it does not apply to current accounts. They go on to say i have a £1206 balance and a payment plan for arranged for monthly instalments of £5.47.. hmmm not any more! Should I now contact Cabot and arrange to continue paying this privately?[/B][/I]

Thanks, Pooks

This was Niddy's response..

[I][B]correct, you ought to be trying to make a F&F, say around £100 to close this.... if you have it of course?[/B][/I]

My letter from Cabot said:

[I][B]I understand you have made a request for information pertaining to your account pursuant to section 77/78 of the Consumer Credit Act 1974 ("CCA").

There is no need for us to provide a copy of your credit agreement under the CCA for Current Accounts and Overdraft Facilities, as Part V of the CCA does not apply to these types of accounts. The exclusion of Current Accounts fallling into Part V of the CCA is set out in section 74(1)(b). I have therefore returned your £1.00 fee with this letter.[/B][/I]

Im confused as it appears to be the same letter you got... wonder if Niddy thought I was meaning something else as he agreed they did not have to supply it??

Thanks, Pooks

[pooksthebear]

Re: Pookies UE Diary

Hi all again... right im very very confused now after reading back through my posts regarding the Yorkshire Bank overdraft now with Cabot haha. Page 3 and 4 it seems the opinion is that the overdraft is not covered and they dont have to send a CCA. Page 6 a post from Clever Clogs states regulations now changed and they are not exempt and Flower Power's link on the above post, seem to also suggest they are not exempt. Does anyone know please? Shall I send a copy of the same letter that Flower sent?

Thanks, Pooks

[pooksthebear]

Re: Pookies UE Diary

[QUOTE=Flowerpower;157007]Hi,

It's not really me who's dealing with Cabot on that thread, it's from Flossy's diary. I posted the link because you were after bits of legislation regarding O/Ds and Niddy drafted that letter in response to Cabot's letter which says exactly the same as yours. It's not a CCA request as such but a request for information as set out here ---> [url="http://www.legislation.gov.uk/ukpga/1974/39/part/VA"][B][COLOR="Purple"]Consumer Credit Act 1974[/COLOR][/B][/url]

It's one of them 'Niddy specials'. He may have drafted it after your response from Cabot.[/QUOTE]

Ok, thanks ever so much. Yeah Flossy's!! Sorry, I'm just very confused over all the legislation. Looking at Clever Clogs' post overdrafts are no longer exempt, I looked at the link from Clever Clogs but didnt understand any of it let alone know how to put it in a letter. I just want to make sure I'm sending the right stuff and quoting the right stuff otherwise they are gonna know I know nothing haha! I will rehash the 'Niddy special' letter and send that then. Thanks again and sorry for being a pest.

Pooks

[CleverClogs (RIP)]

Re: Pookies UE Diary

[QUOTE=pooksthebear;156994]My letter from Cabot said:

[I][B]I understand you have made a request for information pertaining to your account pursuant to section 77/78 of the Consumer Credit Act 1974 ("CCA").

There is no need for us to provide a copy of your credit agreement under the CCA for Current Accounts and Overdraft Facilities, as Part V of the CCA does not apply to these types of accounts. The exclusion of Current Accounts fallling into Part V of the CCA is set out in section 74(1)(b).[/B][/I][/QUOTE]
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]:
[QUOTE][B]74 Exclusion of certain agreements from Part V.[/B]
(1)Except as provided in subsections (1A) to (2), this Part does not apply to—
(a)a non-commercial agreement,
(b)a debtor-creditor agreement enabling the debtor to overdraw on a current account, ... etc.[/QUOTE]
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:
[QUOTE](1C)Where an agreement that falls within subsection (1)(b) is an authorised non-business overdraft agreement the following provisions apply—[INDENT](a)section 55 (regulations on disclosure of information);
(b)section 55B (assessment of creditworthiness);
(c)section 55C (copy of draft consumer credit agreement);
(d)section 56 (antecedent negotiations);
(e)section 60 (regulations on form and content of agreements);
(f)section 61B (duty to supply copy of overdraft agreement).[/INDENT][/QUOTE]
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.

[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

[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,

[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

[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

[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

[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=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

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]

[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