Stayed Court Case

[JohnnyCo]

I had a credit card and current account with a bank (which I stopped using).

The account had a small overdraft (about £111 but that was offset against a refunded overcharge of about £300 from electricity but bank never acknowledged the refund).

When account closed, they also cancelled the credit card and added the balance to the overdraft making overdraft about £5,000.

I received a summons in 2009 for an overdraft of £5,000. Was a bit shocked at the amount as knew it shouldn't have been that amount (didn't know they had added the credit card to it). Phoned bank and they confirmed the closing balance was about £111 and also got copy statements showing this amount.

I also wrote to bank claiming charges of about £1300. I submitted in my defence that I did not recognise the amount being claimed as correct and also the lower amount confirmed by the bank when I phoned them. Also included about the £1300 claimed refund for charges. Case got stayed mainly because the case about the legality of bank charges was still ongoing.

About a year later got a letter from the claimants asking me to withdraw my defence after the case about charges was finalised. Refused as that wasn't the only part of the defence. Heard nothing more until I received a letter saying that the bank had taken the case back to deal internally.

Have since received letters from other DCA's which I have ignored.

As far as I am aware, the case is still stayed so can someone else now attempt to issue me with another CCJ when the previous one is still stayed?

I've read on this forum about "off setting". Am I correct that a bank can only take funds in an account to offset against another debt i.e. is what they done allowable, increasing an overdraft to £5,000 when the agreed limit was only £500?

I have a feeling that this is going to raise its ugly head again as I've been receiving threatening letters from a DCA.

Thanks

[mgfboy]

Re: Stayed Court Case

I must admit I thought , they couldn't offset to a OD at all if it's unauthorised.

[JohnnyCo]

Re: Stayed Court Case

Last transaction on the account was about October 2008 so only about one year 10 months until it becomes statute barred. Wondering if the best thing is to keep ignoring the DCA as I don't want to say at the moment that there is is previous stayed case in case it has been forgotten about and it goes back to the DCA who took out the action to get it cancelled or whatever which would allow a new summons to be issued.

If the summons did proceed I was going to argue that a bank shouldn't transfer a debt that had the protection of the CCA to an account that doesn't have the full protection. A bit like getting a speeding ticket and then selling the car and claiming you are not liable because you don't own the car any more!

[Undercover Elsa]

Re: Stayed Court Case

Hi Johnnyco,
They would argue the right of offset, but afaik for them to do that you'd have had to have an AGREED overdraft limit of £5K in place at the time of set off. If they took you into unarranged overdraft then they would be treating you unfairly.

What happened leading up to this? Did they send you a default notice for the credit card? Inform you that they may set off against other accounts? Did you complain when they did it? Did they respond?
Did you raise a complaint with FOS?
Have you obtained a Subject Access Request for all your data from the bank concerned?
Who is the DCA and what's their most recent threat? Do they now own the debt?

Sorry for all the questions but it's hard to help without more details

[JohnnyCo]

Re: Stayed Court Case

This all happened a while ago (2008) and I can't remember everything that happened. The bank closed the account as I was struggling with keeping the balance in credit. Got in the circle of them applying charges that sent sent me into an unauthorised overdraft. I paid in as much as I could to get into credit again but what I paid in was getting eaten up in charges. They bounced DDs which incurred a charge plus some of the beneficiaries made charges for bounced DD.

I just stopped using the account as I had another one I could use. Without the charges etc, I managed to keep my head above water but the left a small overdraft and the CC payment with the old bank. First they denied me access to the account then they defaulted the Credit Card. I had a few disagreements with the bank. I was defrauded out of about £350 which was paid by debit card. They said they would only refund if I got a CCJ which I did but they still refused to refund. Got to the stage of sending the bailiffs round but it turned out to be a Limited Company with no assets.

My credit card was cloned and cash withdrawn from it from a cash point in London. They refused to accept that it could be cloned and said I must have given someone the PIN number. I was not anywhere near London when it happened. It raised a security warning when they tried to withdraw more money. Bank phoned me at home to see if it was me making the withdrawal so they knew I was at home and I had the Credit Card in my wallet at the time.

Told me I had to get a crime reference number. Reported it to my local Police Station who refused to give me a crime reference until I produced a letter from the bank confirming it was fraud. Bank refused to issue a letter as they were not convinced it was. Annoying that I had stopped using the card but used it to fill up with Petrol so I knew where it must have happened but the Police weren't interested.

The bank were also credited with £300 from the Electricity Company which was an overpayment built up through paying monthly by DD. I have a letter from the Electricity Company confirming the refund but the bank denied receiving it.

With lots of other things going on at the time it was too much hassle so I just walked away from it all.

I believe a default notice for the credit card was sent but no mention of off setting against the current account.

First I knew they had done that was when I received a CCJ mentioning an overdraft of £5000+. I phoned the bank and asked them what the balance of the account was and they confirmed £111. Mentioned I had received a summons stating overdraft £5000+ and they then came back and said the credit card debt had been added to it.

I asked for Statements mainly to reclaim fees which they sent together with a copy of the original application form to open the account. I remember sending them £1 so it must have been a CCA request.

I worked out charges came to £1300+ which I put in my defence and also that I didn't recognise the amount being claimed which had been confirmed by the bank as £111. It was MCOL so I didn't attach anything. The case was stayed awaiting the outcome of the OFT case. When the decision from the OFT was made, the DCA who was dealing at the time wrote to me and asked me to withdraw my defence in light of the decision. I refused and heard nothing more until about a year ago when the DCA said they were no longer dealing and it had been passed back to the bank. The case is still stayed.

2012 I heard from Metropolitan who went away and passed to Westcott who are presently issuing threatening letters.