Unenforceable Overdrafts - CCA Information

[Joanna Connolly Solicitors]

[QUOTE=TankusMaximus;n1510234]Hi All, Im new to the forum but would like to seek advice, after sending the marvelous prove it letter in this thread regarding a very old Abbey National, Now Santander overdraft im wondering what my next move is. It took them 6 months just to send the attached.[/QUOTE]


Hello :happy

I can see from the Cabot letter you've uploaded that you didn't send a s78 CCA Request for this overdraft perhaps because you thought it wouldn't apply.

However there has been a recent ruling in court that s78 [U]does[/U] apply to overdrafts which is explained here by Jo >


[QUOTE=Joanna Connolly;n1523192]The claim against our clients in this case was for monies owing under a personal Current Account Overdraft. We lost at first instance before a District Judge in Peterborough County Court and appealed the decision before HHJ Walden-Smith sitting at Cambridge County Court.

The Appeal was successful yesterday. This is an important case because it confirms that [COLOR=#000080][B]consumers using the unenforceability provisions of the Consumer Credit Act 1974 can successfully defend claims for personal Current Account Overdrafts in court. [/B][/COLOR]In this instant case the Appeal court found the personal Current Account Overdraft agreement to be unenforceable pursuant to the Consumer Credit Act because of lack of evidence of compliance with the requirements of the OFT determination.

It was also accepted that [COLOR=#000080][B]Creditors must comply with S 78 Consumer Credit Act 1974 requests relating to personal Current Account Overdrafts, not just credit cards and loans. In this case the Appeal court did find that MFS Portfolio Ltd had complied with the S 78 Consumer Credit Act request. If they hadn’t complied with the statutory request then the personal Current Account Overdraft would have been unenforceable pursuant to s.78 (6) (a) Consumer Credit Act , which is contrary to the position creditors normally take.[/B][/COLOR]

The court also positively approved of the principle established in a European case ruling we put before the court that it is for the creditor to prove statutory compliance. The court did not appeove of the District Judge’s earlier decision in the lower court that our client not recalling something somehow reversed the burden of proof onto our clients and away from the Claimant.

The appeal court also found that MFS Portfolio Ltd had not proved the Assignment to it from the original creditor.[/QUOTE]


So based on this new information I would suggest you send a s78 CCA Request to Cabot.

Anyone who is being pursued through court for an overdraft should do the same and also post on this specific thread here > [URL]https://all-about-debt.co.uk/forum/debt-bailiffs-starting-again/legal-debt-matters/1523192-mfs-portfolio-ltd-v-phelan-west-appeal-overdrafts[/URL]

If you've had a claim issued which is currently stayed (on hold) then also post on the thread for advice.

Di

[cymruambyth]

I would also recommend that you start your own thread so that you can get guidance relevant to your situation that won’t get swallowed up and lost.

[Roger]

[QUOTE=TankusMaximus;n1510234]Hi All, Im new to the forum but would like to seek advice, after sending the marvelous prove it letter in this thread regarding a very old Abbey National, Now Santander overdraft im wondering what my next move is. It took them 6 months just to send the attached.[/QUOTE]

Well if you look at [url]https://www.all-about-debt.co.uk/forum/debt-bailiffs-starting-again/unenforceable-credit-agreements/unenforceability-diaries/10382-unenforceable-overdrafts-cca-information#post10382[/url]

Niddy sets out what they should send and have been sending.

I should send unredacted copies of what Santander have sent to Niddy for document checking see here [url]https://www.all-about-debt.co.uk/forum/debt-bailiffs-starting-again/unenforceable-credit-agreements/28376-document-checking-updated-06-2017#post28376[/url]
"..
[LEFT][COLOR=#555555][FONT="Noto Sans"][SIZE=13px]If you'd like to send us your unedited agreement to check, in which we'll let you know if we feel it is enforceable or not, then send an email with your agreement attached to: [/SIZE][/FONT][/COLOR][/LEFT][EMAIL="webmaster@all-about-debt.co.uk"]webmaster@all-about-debt.co.uk[/EMAIL][LEFT][COLOR=#555555][FONT="Noto Sans"][SIZE=13px] and we'll get back to you within a few days. If however you'd rather use the old system of loading each pdf to your personalised thread in the [/SIZE][/FONT][/COLOR][/LEFT][URL="https://www.all-about-debt.co.uk/forum/aad-secure-legal-portal/document-database/upload-your-cca-t-c-s"]Secure Upload your CCA[/URL][LEFT][COLOR=#555555][FONT="Noto Sans"][SIZE=13px] section then you are free to do so.
.."[/SIZE][/FONT][/COLOR][/LEFT]

[TankusMaximus]

Hi All, Im new to the forum but would like to seek advice, after sending the marvelous prove it letter in this thread regarding a very old Abbey National, Now Santander overdraft im wondering what my next move is. It took them 6 months just to send the attached.

[The Tech Clerk]

mortgages is 12 years unless there has been any changes but not heard of any in England/wales[LIST][*]Mortgage shortfalls have a longer limitation period of twelve years for the money you borrowed (the ‘capital’), while the interest charged on this has a limitation period of six years[*]Personal injury claims have a shorter limitation period of three years[*]Income tax, VAT and capital gains tax [URL="https://www.stepchange.org/debt-info/business-debts.aspx"]debts to HM Revenue & Customs[/URL] don’t have a limitation period. This means HMRC can take you to court for these debts even if they date back many years[*]If the creditor has already obtained a [URL="https://www.stepchange.org/debt-info/ccj.aspx"]court judgment[/URL] or order before the limitation period passed the debt can never become statute-barred.[/LIST]but in Scotland think you will find 20 years????

[DNW]

Fabulous, thanks Cym :) Another giant pile of paperwork I can move to a different box file at long last lol :wonderful:

[cymruambyth]

I think they do. I believe mortgages are 12 years but all the rest are 6

[DNW]

Do overdrafts become statute-barred in the same way that other debts do?

We've got an OD which was last paid 6 years ago and the only correspondence sent has been appropriate AAD templates, to which we've heard nothing back for 5 years so I was just wondering if I can mark this one in my file as SB now?

[Never-In-Doubt]

No rules have changed recently affecting this. Send an overdraft cca :)

[DoubtingThomas]

Before I do that, was it more or less decided that the changes in the rules applied retrospectively re existing overdrafts? I appreciate every case is different, but I don't want to waste anyone's time.
I have been battling the bank concerned for about 5 years now over this. I don't want to waste anyone's time
Thanks
DT

[DoubtingThomas]

Thanks NID. I will start a thread in private area as still under scrutiny and needs privacy
DT

[Never-In-Doubt]

Yes, send a CCA request for the overdraft.

They’ll write back saying it’s not relevant. Fine. It’s UE when they do that as they’re in default. There should be annual statements etc - the lot.

[DoubtingThomas]

Hello All
A question relating to overdrafts possibly being unenforceable:-
If, after a claim for interest charges to be refunded in relation to an overdraft and FOS decide the bank was right to charge interest when the overdraft went belly-up and led to a default etc, does this decision by them invalidate any claim that the overdraft is unenforceable as the interest charges applied by the bank took it over the agreed limit and the account may therefore become regulated and subject to a CCA - as outlined in the first letter in this thread of NID's...OR...is it a separate issue entirely?
DT

[Never-In-Doubt]

Re: Unenforceable Overdrafts - CCA Information

I've replied to your message :)

[alfie]

Re: Unenforceable Overdrafts - CCA Information

Thanks nanna58.
I am thinking it would, though would be grateful for any opinions either way.