Q&A With Niddy & Joanna Connolly

[Rebz]

I have read various posts that set out that a Default Notice is required to enforce a Current Account Overdraft. Can you explain that in a little more detail as I have confused myself with a historic issue that has resurfaced (and I am worried that Limitation wont help me having read posts about PRA v Doyle here and elsewhere).

Whilst I can see that a Default Notice would be required for termination of the Agreement, if, being an overdraft, the debt is payable on demand, could a creditor not sue for the whole debt owed without service of anything other than a demand for payment on the basis there is no accelerated recovery (and use that to escape an allegation that the Default Notice was defective … but then on this matter get caught by limitation as the Default Notice was not part of the cause of action like in Doyle)?

[Joanna Connolly]

It used to be thought that default notices had to be served before a personal current account overdraft could be terminated. The position is that they do not because as you rightly say there is nothing due to be “called up” which is another way of saying “accelerated balance”.

An exception to this is where personal current account overdrafts are secured, in which case the provisions of s.87 (1) (e) of the Consumer Credit Act 1974 applies except for floating charges which become fixed are not applicable by virtue of S.87(3).

Doyle v PRA will only impact limitation in cases where the personal account overdrafts are secured. Was your personal account overdraft secured perchance?

[Rebz]

It wasn't which is nice because I was devastated it had cropped back up I was convinced it was all behind me and shortly it will be. Many thanks

[Joanna Connolly]

Often new clients say to me that a debt is statute barred or they come to me after they have filed a defence alleging that. In the majority of those cases the debt is not statute barred because of mistaken dates but sometimes a creditor produces a statement showing a£1.00 payment made in isolation a few years later.

How sure are you of date of last payment or date that you last acknowledged the debt in writing?

[Rebz]

My records showed that i had Last paid on 4th December 2006 and had no written communication with them after January 2008.

only exception is a dsar a few weeks back which proves my records and there are 6 clear years between jan 08 and dsar

[Joanna Connolly]

Hi Asdun

I am replying to your message here as the answer may help others too.

Part V of the Consumer Credit Act 1974, sections 55 to 74 inclusive , provides the requirements for entry into credit or hire agreements. By Section 74(1)(b) , Part V does not apply to a debtor creditor agreement enabling the debtor to overdraw on a current account, as qualified by section 74(3) which states that S.74(1)(b) applies only where the FCA (used to be OFT) so determines. S.78 is part VI of the Consumer Credit Act 1974 and there is no exemption for compliance for the creditor.

[julian]

Your recent successes have highlighted that DCAs not FCA-authorised and their 3rd party collection agencies cannot start a court claim. Some of their agents hide behind a very thin veil of Solicitor, albeit in the same office/desk.

Does that constraint affect enforcement?
Can a company, not authorised by FCA, take a debt they have purchased, which is subject of a CCJ, to court for initial/further enforcement? Or can their "in-house solicitor"?

[The Tech Clerk]

......

[julian]

Well, thanks. I don't have a site, and am responding to the open door - open questions.

I have not had any questions directed? So I don't know who poked you.

Perhaps you might have considered that it would be a relief to have some generic info on enforcement and the impact ANY current rulings have on post CCJ actions. Perhaps you don't.

I shall slam it shut. Sorry to have bothered you.

Bye

[SarahSarah]

As a user of this forum, I am trying my best to find the threads, diaries etc with which to educate myself rather than ask specific questions when they are constrained by deadlines, contributor availability etc. There’s a lot to unpick and a lot to learn, it can be very daunting. With that in mind, I would be very interested to read an answer to Julian’s question regarding non-FCA approved collectors issuing court claims.

(I am already a paying client of JC.)

[Never-In-Doubt]

As a user of this forum, I am trying my best to find the threads, diaries etc with which to educate myself rather than ask specific questions when they are constrained by deadlines, contributor availability etc. There’s a lot to unpick and a lot to learn, it can be very daunting. With that in mind, I would be very interested to read an answer to Julian’s question regarding non-FCA approved collectors issuing court claims.

(I am already a paying client of JC.)

Hi

We are a self-help consumer forum so therefore the logic is that you ask questions if you cannot find an answer to your question, using the advanced search facility. The whole point of what we do is to point you in the right direction, to stop the lenders and their dogs breaking the law, hassle you or take advantage and hopefully at the end you'll walk away debt free.

Obviously each member here and each lender and even each DCA has a different approach and set of circumstances so we always say to form your option(s) based loosely on others experience, as no two cases will ever be the same. Of course, with our years of experience we are here to help and thus asking questions is a quick way to get immediate answers to questions - you can PM one of the team if you're desperate or contact Joanna Connolly - details are posted on various pages throughout the site (AAD section at the top, then look down the right side of the page).

As to your / Julians question - if an unauthorised DCA sends a threat then we would advise, being you are on our forum, to contact Joanna / Diana urgently. We would not recommend, at this stage, to deal yourself as Jo has demonstrated a working method and whilst we love the fact she's spanking DCA's - it's not right that we share this info publicly for others to then try and use. Certain things will always remain confidential from public view; as a paying client of Joanna's then if you email her and ask her then I don't see why she would not answer you - but if you post it publicly then we won't be happy.

The point is, and historically, there are a few other forums out there who literally copy everything we do - as if it's a competition. We are way too big and grown up for that nonsense now, however what we don't want is for them to try and then steal users from here. There is no other forum that can offer the same level of expertise as we do and we'd like to retain that standard.

Hope this answers you, if not click the little chat icon next to my name and send me a message. Thanks.