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Unenforceable Overdrafts - CCA Information
[SIZE=28px]new process - effective 2019[/SIZE]
Please note the information below is slightly outdated - please instead read the following info [URL="https://all-about-debt.co.uk/forum/debt-bailiffs-starting-again/legal-debt-matters/1523192-mfs-portfolio-ltd-v-phelan-west-appeal-overdrafts"][B]Here[/B][/URL] then send us a question on this thread.
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[SIZE=28px]overdrafts - cca information & templates[/SIZE]
This new thread is a compilation of posts from around the forum recently that involves our continued discussions regards to overdrafts and their legality within the provision of the Consumer Credit Act.
This holding post (1) will eventually contain links and information regards the basic provisions and will also contain a CCA Request styled template and a couple of response letters that will need to be sent when the bank try and welch on their duties to respond as appropriate.
[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]enter bank name here[/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=28px][B]Sign Digitally[/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]enter bank name here[/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=28px][B]Sign Digitally[/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
Please note the information below is slightly outdated - please instead read the following info [URL="https://all-about-debt.co.uk/forum/debt-bailiffs-starting-again/legal-debt-matters/1523192-mfs-portfolio-ltd-v-phelan-west-appeal-overdrafts"][B]Here[/B][/URL] then send us a question on this thread.
-------------------------------------------------------------------
[SIZE=28px]overdrafts - cca information & templates[/SIZE]
This new thread is a compilation of posts from around the forum recently that involves our continued discussions regards to overdrafts and their legality within the provision of the Consumer Credit Act.
This holding post (1) will eventually contain links and information regards the basic provisions and will also contain a CCA Request styled template and a couple of response letters that will need to be sent when the bank try and welch on their duties to respond as appropriate.
[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]enter bank name here[/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=28px][B]Sign Digitally[/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]enter bank name here[/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=28px][B]Sign Digitally[/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
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