Unenforceable Overdrafts - CCA Information

[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]

[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

[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

[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]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]

[Never-In-Doubt]

Re: Overdrafts

[CENTER][B]


New thread - Niddy updating with posts from around the forum[/B]
[/CENTER]

[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]

[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

[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

[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

[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????

[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

[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;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;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.