Start of my diary

[Colin G Quinn]

I'm not sure I follow; I don't believe I suggested you were suggesting we were instructed in Arrow v Frost.

I am aware of the Judgment and you are incorrect. At paragraph 39.4 the Judge determined that, if the default notice was posted it fell to be properly served. That is completely different to your post at 852, whereby you said the Judge determined the date of service to be the date of posting.

[Joanna Connolly]

Warwick

Kindly clarify the cases to which you refer when you say "courts said there was an exception" and whether in those cases the Defendant was legally represented.

Personal Current Account overdrafts are not exempt from having to comply with Part VI of the Consumer Credit Act 1974 - Matters arising during currency of Credit and hire agreements which includes s.78 CCA. They are only exempt from having to comply with the form of the agreement as required under Part V of the Consumer Credit Act 1974.

[Strepsi]

Can I just say, that I think this a little unfair...

[Warwick65]

Colin
Let's get something straight

I did not once suggest you or your firm had anything at all to do with AG v Frost, I also have no idea why it wasn't appealed although I suspect the comment by the Judge that Mrs Frost was an unreliable witness may have contributed. If you read S39.4 of the judgement it seems to say a DN is served once it is posted and the Judge disagrees with Goode who is often seen as the arbiter of the CCA.

I also have not said anything about the CCA not being a matter of law but of course as you will know, interpretation is continually evolving - think Carey , Goodinson and lots of other judgements that you or your firm had nothing to do with (possibly because they happened before JCS existed). What I said was that the ruling that said S78 applied to a current account was not binding - certainly for many years creditors and courts said there was an exception.

[Roger]

Well lets understand Joanna Connolly and @PlanB and Colin G Quinn comments and references can easily be found on the AAD site referencing this County Court Appeal Case.

"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"

Arrows lawyers will know this CASE because Consumer Debt is a specialist area of the Law and they are paid to know.

Personally I would not write to Arrow and risk restarting the Statute Bar clock. Why do their homework for them!
But that is my personal choice and your decision may be different.

[Colin G Quinn]

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.

I'm not entirely sure this has 'gone off topic', although it appears there are attempts to make the matter more confusing than it actually is, when that is not necessary at all.

I quote your initial post above; If you look at the content of what has been sent to you, it doesn't even make sense. What does 'not suitable' mean? It doesn't say not applicable, not relevant, not available...not suitable? Suitable to who?

All in all, if a creditor is in breach of your CCA request I wouldn't follow it up with a request for more information on the matter, or ask them to check again if they are correct. Whilst in breach, the breach is ongoing.

I have posted on this forum elsewhere, that generally CCA requests are dealt with by a creditor's general admin department, and not a legal department who may or may not know what is required for complete compliance.

If they wish to remain in a state of non-compliance, leave them to it.

Warwick is incorrect. A breach of the CCA is a matte of law, and not a general consideration for a Judge to make. It is not a matter to be considered on the balance of probabilities.

There has been reference made to the case of Arrow v Frost, which was a case our firm were not instructed in. Warwick has not understood the Judgment given and, in any event, as we were not instructed we do not know the reasons for why the Judgment was not appealed.

[Warwick65]

Sorry and maybe one of the mods could tidy up the thread as it has rather gone off topic.

As far as I am concerned, there is nothing stopping you saying they should comply with your S78 request and even quote the judgement if you can find the details or say there is an appeal judgement saying S78 covers overdraft (maybe choose words carefully). However what I wouldn't want you to do is think of this as a magic bullet that will definitely cure your 'problem'.

[Strepsi]

Can I just say, that I am still none the wiser.

I think we need a referee!

[Warwick65]

Oh Dear Roger

It is you that is confused.

Yes this is an important judgement and yes it can be used to try and persuade other Judges that this is the case, after all, the Judge was sitting as a circuit Judge which is more senior than the usual judges who get to hear CCA cases.

However- the judgement is one judgement , yes with multiple parts but still one judgement. It is not up to you or me to pick and choose which bits are binding and which bits are not. Therefore non of this particular judgement is binding

There is nothing stopping anyone quoting the judgement and saying an overdraft is covered by S78 but it install down to the Judge to decide.

[Roger]

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).

In this multi judgement the following are Binding on the lower District Court because they are bound by the County Appeal Court!
This is the point made by PlanB and @Colin G Quinn
"..
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 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 approve 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.
.."


I think you are confuse by the MFS Portfolio Ltd’s lack of FCA Authorisation point!
BUT as Joanna pointed out ".. this decision is not a binding decision on other courts.."
"..
We were not successful on the MFS Portfolio Ltd’s lack of FCA Authorisation point. For obvious reasons, having won the actual appeal for our Clients, this won’t be appealed further by our Clients - 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. On this same point, we are currently waiting for reserved judgment, in a different appeal case at Chester County Court, to be handed down.
.."

Strepsi "It was also accepted that Creditors must comply with S 78 Consumer Credit Act 1974 requests relating to personal Current Account Overdrafts " Arrows solicitors will know this! The advice is to file and wait and see what the send next!

[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).

[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!

[Strepsi]

Confused, I couldn't find the correct smiley!

[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]