Start of my diary

[Roger]

DCA's haunt the Credit Reports!
These are a pool of information for interested parties.
Lenders, MOB Providers, DCA's
So be prudent about what details or otherwise you place on these sites!

[Strepsi]

I have taken your advice, both requests are in enveloples ready to be sent tomorrow along with postal orders. One to Drydens and one to Arrow.

We will see how we get on.

Just come back from a week away.

Received letter from Arrow in that time, it reads...

"We note that from your account that provided you with statements and a copy of terms and conditions in October 2018.

Please note that the product of your account is an overdraft, therefore the copy of agreement is not suitable"

Thoughts please, my thought is that they are incorrect.

[stuckinarut]

Just come back from a week away.

Received letter from Arrow in that time, it reads...

"We note that from your account that provided you with statements and a copy of terms and conditions in October 2018.

Please note that the product of your account is an overdraft, therefore the copy of agreement is not suitable"

Thoughts please, my thought is that they are incorrect.

Hi Strepsi Well it wont be suitable for them, Thats for sure. However the cca request worked well for me. Stopped them in their tracks. Pretty sure others will agree. To date file ignore. Take care

[Roger]

Just come back from a week away.
Received letter from Arrow in that time, it reads...
"We note that from your account that provided you with statements and a copy of terms and conditions in October 2018.
Please note that the product of your account is an overdraft, therefore the copy of agreement is not suitable"
Thoughts please, my thought is that they are incorrect.

Originally posted by Joanna Connolly View Post
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 consumers using the unenforceability provisions of the Consumer Credit Act 1974 can successfully defend claims for personal Current Account Overdrafts in court. 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 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.

[Timewilltell]

I just wrote back to them asking if there was any further paperwork to be forwarded as they haven’t fulfilled the cca request. After a couple of silly reply letters they faded into the sunset.
??

[Strepsi]

Originally posted by Joanna Connolly View Post
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 consumers using the unenforceability provisions of the Consumer Credit Act 1974 can successfully defend claims for personal Current Account Overdrafts in court. 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 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.

What would be the best course of action?

How would I ask for further information?

At the moment haven't received any further correspondence from Drydens.

[Warwick65]

You might want to read the whole original post. It goes on to say this is not a binding ruling. Wouldn’t want you to go in all guns blazing with only half the story.

[Roger]

It was the Court of Appeal and these Cases are binding on the lower courts in matters of Law.
Like so many Case Law arguments these are best left to Lawyers NOT us lay people to argue over!

The importance here is Arrow have sent something, which implies they DO BELIEVE that they are required to respond to your S.77/78 CCA Request!
.. Please note that the product of your account is an overdraft, therefore the copy of agreement is not suitable"..
The NOT SUITABLE is their Opinion! They are not a Court and certainly not the Court Of Appeal

With AAD silence is the best course to follow from a CCA request! Don't engage in ANY correspondence with Arrow
Wait and see what they send next! Then refer back to AAD

[Warwick65]

Roger, this is from the last paragraph of the post so it is not I, a layperson, but JCS who is making that distinction

. however this decision is not a binding decision on other courts as HHJ Walden-Smith was sitting as a Circuit Judge and not as a High Court Judge.

[Roger]

Roger, this is from the last paragraph of the post so it is not I, a layperson, but JCS who is making that distinction

Warwick65 I thank you for your caution and also to not be confrontational with the DCA's a sensible strategy!

Yes I have understood that this a County Court Appeal against the lower District Court decision. BUT there wasn't a High Court Appeal against this County Court judgement was there?

So what is current and relevant for Us is
".. using the unenforceability provisions of the Consumer Credit Act 1974 can successfully defend claims for personal Current Account Overdrafts in court ..
.. It was also accepted that Creditors must comply with S 78 Consumer Credit Act 1974 requests relating to personal Current Account Overdrafts, not just credit cards and loans..

This County Court Appeal decision is binding on the lower District Courts (Its the District Courts that we commonly experience in Consumer Credit Cases) This stands as the Law until either the Enacted Law IS Changed by Parliament or somebody RISKS an Appeal TO the High Court (the costs at this level are horrendous)

For the present this is binding on the District Courts!
However I would reiterate ".. Case Law ARGUMENTS ARE BEST LEFT TO LAWYERS NOT US LAY PEOPLE TO ARGUE OVER! .."
It also seems that ARROW would like to confuse you or otherwise by supply some statements etc.. followed by a that rather wishy washy ".. Please note that the product of your account is an overdraft, therefore the copy of agreement is not suitable .."
Well until or unless the DCA's care to risk (and they could lose millions ) a High Court Appeal on that specific point then the County Court Appeal judgement stands as the Law

So my own suggestion!
With AAD silence is the best course to follow from a CCA request! Don't engage in ANY correspondence with Arrow
Wait and see what they send next! Then refer back to AAD

[Strepsi]

[Warwick65]

Not sure if that means you are confused or not.

Essentially it means you can try and tell the court it is persuasive that a previous judge said x y z. Of course Judges are funny beasts and may agree or may be contrary and disagree.

Im also guessing the reason they didn’t appeal was the appeal was won on a different point, the s78 was almost a side issue and it was agreed they had complied. You can not pick and choose which bits you appeal. That of course is only an educated guess.

Sadly it is far from a slam dunk in court. For example in arrow Global v Frost the judge deemed date of service of a DN was the date it was posted (I think).

[Strepsi]

Confused, I couldn't find the correct smiley!

[Roger]

This was PlanB 22 July 2021, 15:21 https://all-about-debt.co.uk/forum/a...75#post1541675

That was quick!

Of course they'll say a s78 CCA Request doesn't apply to overdrafts but as you'll see from this post the Appeal Judge took a different view in this case >

Originally posted by Joanna Connolly View Post
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 consumers using the unenforceability provisions of the Consumer Credit Act 1974 can successfully defend claims for personal Current Account Overdrafts in court. 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 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.

The good news is it's on hold for now

Di

Also

Hi Mitz1e,
I was about to post, before you beat me to it.
I was going to say that CCA requests and Letters of Claim and subsequent responses, are generally not dealt with by a creditor/creditor's solicitors legal department. They generally only get involved at the defence or set aside Judgment application stage.
Therefore, it follows, that the creditor's response is usually dealt with by someone who has no real working knowledge of the CCA or what is and what isn't required.
I was going to say you may anticipate receiving the response which you have.
I am aware of the leaflet to which you refer, which is just a standard form someone has added into their first response, probably following general instruction.

Of course ARROW say a s78 CCA Request doesn't apply to overdrafts but as you'll see from this post the Appeal Judge took a different view!

[Warwick65]

My whole point is that it is not binding. I am not going to get into a xxxx waving contest ( of course I would win?). Blag and bluff all you like, god knows I have done that when I used to send missing PT letters but be aware the sh*t may hit the fan at some point.

Keep records, records and more records but I would also say for every rule there is an exception ( I got accounts closed over the phone).