Sound advice .... so your next move is request a cca scan and post up - whereby everyone will give their opinion if its an iffy CCA we will tell them that & accept unlawful repudiation if its an ok CCA .. we still accept unlawful repudiation and see what their next move is .... then we plot your next move ... Robin .. x

Hi, Ok ... AA DN - dated (Friday) 14 Aug 2010 & you say sent 2nd class - which means 4 day delivery period from getting into postal system. Written on a Friday - so wouldn't have gone into the mail system until Monday (IMHO) which gives us a date of 16 August 2010 plus 4 days travelling time gives us earliest delivery of Fri 20 Aug or latest delivery time of Sat 21 Aug 2010. (lets use the 21st ) plus 14 prescribed calender days for remedy gives us a remedy date of Sat 4 September 2010 - but we have a bank holiday in this time frame on Monday 30 May 2010 - so that takes it down to 13 days. (and a correct date for remedy of 5 Sept 2010) so the DN is 1 day short IF received on Sat 21 Aug 2010 - however IF recd on Friday 20 Aug 2010 then we have the required time period allowed as denoted in the DN of 4 Sept 2010 The letter from Albion is dated Sunday 29 August 2010 - and you say sent 1st class (=2 days svc). It would have gone into the postal system on Tuesday 31 May 2010 (remember Monday 30 May was a bank holiday) So that gives us a receipt time of 2 Septermber or 3 September - both dates still (just) before the DN cited cut off date of 4 Sept 2010. So unlawful repudiation occured by Albions pre-empted letter of 29 August - clearly guessing that you were not going to remedy the DN issued by AA -- how far sighted of them .. do you think they'll give me tonights lottery numbers !!!! Hope this makes sense ... or is it as clear as mud !!?? Hope this helps ... Robin x

No ... errors or omissisons from or under the CCA74, no matter WHEN the agreement is from means that it MAY be unenforceable in court - its just that post 2007 Creditors tended to be aware of the faults and tightend up the CCAs .... but there are still errors in post 2007 CCAs .. and yours may be one of them.. Have you posted the CCA up for everyone to have a look at ? Robin x

Now we're talking ..... but we may need to proceed with caution .... A DN is the legal opportunity for you the Debtor, being in breach of your original credit agreement in having missed payment(s), to remedy the breach/default by paying the outstanding monies, whereby the agreement is treated as if the default never happened ... (i.e in-effect putting you back to the start ... whereby if you default again the cycle re-starts). However, 9 days into your service period, they demand the full amount. That means that in paying the full amount you wouldn't be putting the ball back to sqaure one as it were, but would be completely redeaming your loan and therefore ending your agreement. So they are guilty of unlawful repudiation of the agreement, in that they have not allowed you sufficient time to remedy the breach (i.e 14 days from service) - which is against the CCA74. Now then .... that being said we have a slight problem with the recent Brandon case ..... The bones of the Brandon case is that the Debotor argued that the Debtor had not given sufficient time in the DN for them to remedy, which rendered the agreement unenforceable ... whereby it was argued by the Creditor & accepted by the Judge .. that regardless of the time given for remedy, the Debtor had no intention to remedy the breach regardless - and therefore the error in time for remedy was academic ....... the Judge acceped this and found for the Creditor..!! I don't want to frighten you (I'm in this position myself with a few creditors), but I think its important to be armed with anything that may rear its head in Court, it just means that you're prepared. But technically and in strict regard to the CCA74 - they are guilty of unlawful repudiation and have thereby lost the benefit of s87, in that they can not claim any sum due in the future, and have lost that right forever. Maybe worry about the Brandon case if you're skidding into Court with them .. !! They are legally only able to claim the genuine arrears (which I don't think can include penalty charges, as they are not technically credit repayments so are technically not genuine arrears /missed payments under the agreement). If this were me, I would accept their unlawful repudiation of the agreement and tell them that they have thereby lost the benefit of s87, I don't think I would tell them why they have achieved unlawful repudiation - but thats up to you - you could leave them to work it out for themselves. (I also wouldn't tell them about them being legally due the arrears under the agreement, let them find that out for themselves too). See what they come back with ... !! PS =- don't know if this has been raised .. but have you absolutely gone throught your CCA with a fine tooth comb ... you're looking for errors or omissions. So you're checking:- That the amount borrowed, the term and monthly repayments in the CCA are correct to what you did borrow, what you were paying per month etc Have you checked the APR is correct ? As Ford says .. any PPI ... if so did you want it, need it, afford it, felt pressured into buying it (to be accepted for the credit/loan) ? Check .. check ... and check again .... the devil's very much in the detail ... and could give you another pronged attack .. Robin x

HI BB, Sorry the link doesn't work. Having had a read though other threads, I have established that if they claim no formal notification was required or issued by them, and that the only regulation is through the T&Cs issued via branch and with the bank account. Then by virtue of this admission (which I shall SAR them on I think its heading to court), the haven't complied with the OFT directive - which dictates that a letter is issued by the bank to the account holder, advising them of the amout of OD, charges, and method of termination - and if the bank does this they obtain part v exemption. So, if they haven't complied, by their own admission, with the direction of the OFT as noted above - they have lost the benefits of part v exemption (which they haven't mentioned anyway), whereby part v comes back into play, and they then need a fully executed consumer credit agreement to pursue court enforcement - which they can't because they don;t have an exectued agreement.... So, if I'm right, they've buggered up, and I;m in the clear. (of course I;ll SAR them on this when I get a spare £10 just to see whats in their files). Anyones thoughts ... ? Robin x

In this boat myself, OD with a bank ... when the OD commenced the bank needed to have sent you a letter giving information on the amount of authorised OD, the monthly & annual interest rate, and how the OD may be withdrawn. They need to send you one of these every time the OD is amended, either increased or decreased. Then, as far as I understand ... when/if the OD was/became unauthorised - which it would have been when they pulled the plug, they have to supply you within 3 months of this, a further letter giving you full details of the interest being applied (which will be higher as its now an unauthroised OD), charges being applied and the annual rate of interest - its my belief from reading, that if they haven't sent you this unauthorised OD letter, then the OD looses part V excemption and becomes regulated whereby they need to provide a CCA for lawful enforcement ... which they can't because technically there isn't one ... But I'm learning myself ... so would be well worth you reading the thread on ODs being covered by the CCA. I'll find it and add it on ... Robin Here's the thread on ODs and CCAs - may be helpful .. http://www.consumeractiongroup.co.uk/forum/showthread.php?237096-Are-overdrafts-covered-by-cca-s

In this case the bank themselves have claimed that the only part of the acct regulated by the CCA is the issue of a DN, which must be do so under the terms of the CCA for them to benefit from it. The issue of DN is not in question .. its been established that they need one, sent one 87(1), and its defective. The question is their continued assertion that the acct is not regulated in any way by the CCA (apart from the issue of the DN) - and a suitable response... although to be honest I'm just going to draft a letter which I think suits and send it off.

Agree with Ford ... although not strictly compliant as yes the parts you have highlighted should be underscored - if this is the only error, and you have a correctly executed agreement as well, I can't see a Judge (should it go to court) rule in your favour. Sorry, I know not probably what you wanted to hear ... !! Have you had your agreement checked out to make sure its correctly executed ? Robin x.

Classic DD !!!

Yes ... I;ve already had s 87(1) DN issued by the bank - which fails in its compliance to the regulations regarding time for remedy, no numeric figure given for the amount to satisfy the DN, the amount to satisfy itself is disputed as incorrect, and also other layout issues. Already discussed earlier in this thread. Had a CRA confirm partially regulated by CCA. Had a default registered with CRAs for the total OD, only in July when the bank confirmed they were withdrawning the remaining part of the authorised od facility - which is why the amount requested in the DN is disputed. They have made a right mess of this ...

Roxburghe today reared their head again .. with a chasing letter and a "we are considering what action to take" threat .. My thoughts are to bang on with the "oh yes it is regulated" to the bank ... and just ignore rox. Comments guys ... ??

We have a response from them ... I had requested a copy of the original bank acc application and agreement, explained to them that the OD facility is regualted by the CCA74, and accordingly I req a true copy of the agreement relating to the odraft, the agreement of which they claim in breach in the DN already issued by them. They have responded ... " As overdrafts are exempt from the formal content requirements of te CCA and are governed by the terms and conditions of the account, we have returned your £1.00 payment for a copy of the agreement. Unfortunately we are unable to provide you with a copy of your original agreement" "On opening your account you would have been provided with a copy of the current terms and conditions for that time and you wil have been notified throughtout the life of the account of any changes". So what they are saying is the OD element isn;t covered by the CCA at all, and is only governed by the T&Cs relating to the bank account, and that there are no agreements, or info relating to the od element to be provided by them, other than what is generally available via T&Cs.

Hi guys ... Update .... they have now registered a default with CRAs 31 Jul ... as I obviously didn't repay the remaining authorised half of the OD they wanted payment of by 25 Jul. They haven't replied to my challenge to their "oh no it isn't regualted" letter .... heard nothing from the DCA either .. up to now ... Update as and when peeps....

Back again ... M&S have replied quoting the same load of balls, pres terms are allowed to be in the t&cs under 61(b) ... etc .. They have now told me that they did not need to have a new agreement executed when they replaced a chargecard with a credit card, as the OFT told them all they needed to do was issue a variation of t&cs document ... can this be right ... surely not ? (even so what they have sent is a load of cr*p anyway ... so makes little difference) Robinx

Thanks for the input on this guys ... On the "are they ... aren't they" regulated saga ... I can only go on what I've been told by other Caggers, the Coutts Case, Experian, and the Bank themselves ... 1. Caggers have told me which parts of the act regualted ODs - and that whilst no "cca" as we know them for credit cards are available, the bank have a liability to issued with a letter explaining the basis of the OD, interest, terms for revoking etc ... 2 .Coutts case confirms OD are regulated under The Act (part V excemption allowed) 3. Experian, when asked why an unregulated banking account may be registered clarified with this response “Overdrafts are covered by sections of the Consumer Credit Act, since they are a form of credit. This is why your credit report only shows information about overdraft balances and not the amount you are in credit.” 4. The bank themselves, whilst distancing themselves from actual regulation of the OD, contradict themselves by saying in the same letter .. that the issue of any DN in relation to the OD, is done so under S87 of The Act, which to quote them" must strictly adhere to the terms of the CCA74" So up to now we have 3 - 0 (lets leave the bank out for now) for regulation under the CCA74. In response to this I told them ... "Your response is to suggest there is no documented agreement in place, and to claim that an overdraft agreement is not subject to the regulations or remedies under the Consumer Credit Act 1974 (The Act), however this is contradicted in your confirmation that any issue of a default notice is actually done so under The Consumer Credit Act 1974, to which you confirm "any default notice issued must strictly adhere to the terms of the CCA74 (thereby denoting regulation under The Act)." Further to which An overdraft is a debtor creditor agreement as defined under section 8 and 13 of the Consumer supported by case law in Coutts & Co v Sebestyen [2005] EWCA Civ 473 (28 April 2005). Accordingly, S78(1) of the CCA74, sets out quite clearly what is required in order for you to comply with my request, and quote “shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it”. And I've asked them for .. 1. a copy of the agreement, including all variations (if appropriate), of which they cite my contractual breach of in the S87 Default Notice issued 2..a copy of the document signed by myself giving them permission to process my data 3..a copy of all charges applied to the account, statements, and any other documents upon which they are relying upon in this matter I’ve not told them the DN ... 1. does not give sufficient time for remedy (asked for the whole DN & cut up of cards & chq book – which is instant termination) 2... There is not a figure quoted for remedy just “the whole overdraft balance” 2b..... In my opinion it should actually have only have been for the “arrears” of £3500 anyway, a sum requested in January in their initial “review of account letterl” in which they confirmed I would be left with an authorised OD facility of £3500 2c ....My statements post DN, show an authorised OD facility of £3500 (albeit I was way over as they had already withdrawn £3500 of the orig facility. 2d ..... In july I received a further letter saying that after “a review of my account”, they were recalling my authorised od facility of £3500 ... thereby as at end of July I had no authorised OD facility ... (if that all makes sense .. !!) 2e .....So the remainder authorised OD was only wholly withdrawn end of July ... not March when the DN was issued –confirming that when the DN was issued the amount classed as arrears was “£3500”, so the the fig for remedy in the DN should also have been £3500. (convoluted I know .. but if it saves my bacon ... I’ll argue this to the cows come home) 2f ..... DN also incorrectly formatted (which is a bit loose if that was the only thing wrong with it .. but in this case because of the ambigious nature in the way the DN was constructed, and their subsequent communication contradicting what’s in the DN ... I believe its confusing enough and to be a good defence. By their own admission, their own terms of notice which they must abide by under the own OD rules is 3 weeks notice to the Debtor .. which means to me 21 days calendar days (exc b hols) .... So ... Letter dated (Sat) 2 January 2010 (demanding repayment of £3,500 of £7k OD authorised OD facility) & 21 days = Friday 22 January 2010 as final date for remedy before DN realms If we use the same principal as the terms of service for DN them we must allow for posting and exclude any bhols (which in this case don’t apply) So 2 January 2010 is a Saturday ... earliest posting date is Monday 4 January 2010 – can’t be sure when I recd this ... but lets say it was 1st class and I recd it – Wednesday 6 January 2010. 6 January 2010 & 21 days (i.e 3 weeks notice) = 27 January 2010 .... So, I work out (and would argue) they are not only in breach of the regulatory terms of the S87 DN, but also breached their OWN agreement terms They have made a real pigs ear ...and confusion apparently reigns from their end ... of which I intend to make good use ..... !!!!! Sorry its long ..... the post that this ... !!!! All comments – agree or disagree are welcome as always ..... Over and out ..... Robin xx