Blair Oliver And Scott Help Urgently Needed!!!

[bigkacker]

Well first of all I have been in dispute with the Halifax over the bank charges they have applied to my account since 2004.

 

I have a £1000 overdraft which is now up to £1767.80 through charges. I have written on many occasions re this debt however have been palmed off and palmed off repeatedly.

 

The account was passed onto Blair Oliver and Scott who I recieved an initial letter from on 21st November 2007. I immediately sent them a CCA request on 29/11 by special delivery of which I have proof this was recieved by them the following day.

 

The 12 days have now expired and am very nearly approaching the one callendar month since default and have not yet recieved.

 

Today I have recieved a letter dated 3/01/07 advising me that court papers are being prepared.

 

Just to confirm am I absolutely covered by their ommitance to send a CCA to me in the designated timescale.

 

Someone please help I am beside my self with worry because if this goes to court I loose my job.

[noimagination]

The answer to your question is......................I dont no................

 

It is the opinion of my bank HSBC and also the opinion of Barclays bank that current accounts even with o/drafts are not regulatedby the CCA.

Therefore they will say they are not required to issue you with your agreement.

 

Now read this :-http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/110184-car2403-barclays-bank-default.html

 

Confused.....I am.

 

However you say you are reclaiming charges, send proof (meaningful proof) to the DCA that you are disputing the ballance and ask them to wait for the outcome.

 

The way the DCA should conduct themselves is in the document linked below.

 

http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/oft664.pdf

[rory32]

Just to confirm am I absolutely covered by their ommitance to send a CCA to me in the designated timescale.

 

Overdrafts have part V exemptions from the Act (form and content) so the agreement would simply be a letter from the bank stating the amount of credit, APR, charges and cancellation rights (theirs not yours).

It is the opinion of my bank HSBC and also the opinion of Barclays bank that current accounts even with o/drafts are not regulatedby the CCA.

A current account isn't regulated by the Act if there is no overdraft. Overdrafts have exemptions under the Act - they are however not exempt.

[rory32]

To help clarify matters, this is an extract from a Court case Coutts v Sebestyen and this part is part of the summing up by the Judge in relation to overdrafts and The Consumer Credit Act-

 

THE ACT

It is common ground:

 

 

(a) that the agreement for an overdraft of £2,000 in the terms of Coutts' letter dated 5 April 2002 was a regulated debtor-creditor agreement within the meaning of sections 8 and 13© of the Act, providing for 'running-account credit' within the meaning of section 10(1)(a) of the Act (in effect, a revolving credit within the agreed credit limit of £2,000); and

 

 

(b) that, as such, it was subject to the requirements of Part V of the Act (including the requirements as to documentation set out in sections 57 to 63 of the Act) save and in so far as it was excluded or exempted from such requirements.

 

Section 65 in Part V of the Act provides that an "improperly executed" regulated agreement is unenforceable by the creditor without a court order. It is common ground that a regulated agreement is "improperly executed" for this purpose if the requirements of sections 57 to 63 have not been complied with.

 

Section 74 of the Act provides for the exclusion of certain agreements from Part V. It provides as follows (so far as material):

 

"74. – (1) This part …. does not apply to –

 

(a) ….

(b) a debtor-creditor agreement enabling the debtor to overdraw on a current account, …

© ….

(2) ….

(3) Subsection 1(b) … applies only where the OFT so determines, and such a determination –

(a) may be made subject to such conditions as the OFT thinks fit …

(b) ….

(3A) …. in relation to a debtor-creditor agreement under which the creditor is …. a bank …. the OFT shall make a determination that subsection 1(b) above applies unless it considers that it would be against the public interest to do so.

(4) …."

Part VI of the Act relates to matters arising during the currency of credit agreements. Section 82 in Part VI, which is headed 'Variation of Agreements', provides as follows (so far as material):

"82. – (1) ….

 

(2) Where an agreement (a "modifying agreement") varies or supplements an earlier agreement, the modifying agreement shall for the purposes of this Act be treated as –

 

 

(a) revoking the earlier agreement, and

(b) containing provisions reproducing the combined effect of the two agreements,

and obligations outstanding in relation to the earlier agreement shall accordingly be treated as outstanding instead in relation to the modifying agreement.

 

 

(3) ….

(4) If the earlier agreement is a regulated agreement for running-account credit, and by the modifying agreement the creditor allows the credit limit to be exceeded but intends the excess to be merely temporary, Part V …. shall not apply to the modifying agreement.

(5) ….

 

(6) ….

(7) …."

 

 

THE DETERMINATION

 

The Determination (which is signed by the Director of Fair Trading) is made under section 74(3) of the Act. I set it out in full:

"1. Under the powers conferred upon me by Sections 74(3) and (3A) and 133 of the Consumer Credit 1974, I, the Director General, being satisfied that it would not be against the public interest to do so, hereby revoke with effect from 1st February 1990 the Determination made by me in respect of Section 74(1)(b) and dated 3 November 1983 and now determine that with effect from 1st February 1990 Section 74(1)(b) shall apply to every debtor-creditor agreement enabling the debtor to overdraw on a current account, under which the creditor is a bank.

 

 

2. This Determination is made subject to the following conditions:-

 

 

(a) that the creditor shall have informed my Office in writing of his general intention to enter into agreements to which the Determination will apply;

(b) that where there is an agreement between a creditor and a debtor for the granting of credit in the form of an advance on a current account, the debtor shall be informed at the time or before the agreement is concluded:

- of the credit limit, if any,

- of the annual rate of interest and the charges applicable from the time the agreement is concluded and the conditions under which these may be amended,

of the procedure for terminating the agreement;

and this information shall be confirmed in writing.

© that where a debtor overdraws his current account with the tacit agreement of the creditor and that account remains overdrawn for more than 3 months, the creditor must inform the debtor in writing not later than 7 days after the end of that 3 month period of the annual rate of interest and charges applicable.

3. In this Determination the terms 'creditor' and 'debtor' shall have the meanings assigned to them respectively by Section 189 of [the Act]. The term 'bank' includes the Bank of England and banks within the meaning of the Bankers' Books Evidence Act 1879 as amended."

[rory32]

From the Consumer Credit Act 1974:

 

Facts. The manager of the C Bank agrees orally with D (an individual) to open a current account in D’s name. Nothing is said about overdraft facilities. After maintaining the account in credit for some weeks, D draws a cheque in favour of E for an amount exceeding D’s credit balance by £20. E presents the cheque and the Bank pay it.

Analysis. In drawing the cheque D, by implication, requests the Bank to grant him an overdraft of £20 on its usual terms as to interest and other charges. In deciding to honour the cheque, the Bank by implication accept the offer. This constitutes a regulated small consumer credit agreement for unrestricted-use, fixed-sum credit. It is a debtor-creditor agreement, and falls within section 74(1)(b) if covered by a determination under section 74(3).

 

Facts. F (an individual) has had a current account with the G Bank for many years. Although usually in credit, the account has been allowed by the Bank to become overdrawn from time to time. The maximum such overdraft has been is about £1,000. No explicit agreement has ever been made about overdraft facilities. Now, with a credit balance of £500, F draws a cheque for £1,300

 

Analysis. It might well be held that the agreement with F (express or implied) under which the Bank operate his account includes an implied term giving him the right to overdraft facilities up to say £1,000. If so, the agreement is a regulated consumer credit agreement for unrestricted-use, running-account credit. It is a debtor-creditor agreement, and falls within section 74(1)(b) if covered by a direction under section 74(3). It is also a multiple agreement, part of which (i.e. the part not dealing with the overdraft), as referred to in section 18(1)(a), falls within a category of agreement not mentioned in this Act.

 

Facts. Under an oral agreement made on 10th January, X (an individual) has an overdraft on his current account at the Y bank with a credit limit of £100. On 15th February, when his overdraft stands at £90, X draws a cheque for £25. It is the first time that X has exceeded his credit limit, and on 16th February the bank honours the cheque.

Analysis. The agreement of 10th January is a consumer credit agreement for running-account credit. The agreement of 15th-16th February varies the earlier agreement by adding a term allowing the credit limit to be exceeded merely temporarily. By section 82(2) the later agreement is deemed to revoke the earlier agreement and reproduce the combined effect of the two agreements. By section 82(4), Part V of this Act (except section 56) does not apply to the later agreement. By section 18(5), a term allowing a merely temporary excess over the credit limit is not to be treated as a separate agreement, or as providing fixed-sum credit. The whole of the £115 owed to the bank by X on 16th February is therefore running-account credit.

 

Facts. The G Bank grants H (an individual) an unlimited overdraft, with an increased rate of interest on so much of any debit balance as exceeds £2,000.

Analysis. Although the overdraft purports to be unlimited, the stipulation for increased interest above £2,000 brings the agreement within section 10(3)(b)(ii) and it is a consumer credit agreement.

[noimagination]

Overdrafts have exemptions under the Act - they are however not exempt.

 

Apologies but what dose this mean?

[rory32]

They have exemptions from part V of the Act (form and content). This means the copy of the agreement is different from other copies of the agreement and only needs to be a letter containing the prescribed terms as previously posted. They are however not exempt from the Act in that the rest of tha Act applies - they still have to supply a copy of the agreement. It is only part V of the Act that does not apply to overdrafts.

 

Does that make it any clearer?

[noimagination]

Think so.

[noimagination]

So the only bit of the act that dose not apply to overdrafts is

 

Form and /content s60 in part V?

 

Is this correct?

[renegotiation]

Is Blair, Oliver and Scott a Bank Of Scotland joke by the way? Just wondering... :confused:

[rory32]

So the only bit of the act that dose not apply to overdrafts is

 

Form and /content s60 in part V?

 

Is this correct?

Not quite. The letter from the bank containing the terms of the agreement would not need to be signed by the debtor.

[rory32]

Is Blair, Oliver and Scott a Bank Of Scotland joke by the way?

One would assume so as they are Bank of Scotlands in-house debt collectors.

[noimagination]

Not quite. The letter from the bank containing the terms of the agreement would not need to be signed by the debtor.

 

Apologies for this but, so its clear in my mind. All of the CCA applies to O/drafts apart from the requesting "executed agreements"?

 

But they do have to provide some sort of document in request of the agreement?

[rory32]

Okay the determination made under section 74 on overdrafts on 21 December 1989 was subject to 3 conditions which outlines the document that they would need to provide

 

 

“(a) that the creditor shall have informed [the OFT] in writing of

his general intention to enter into agreements to which the

Determination will apply;

(b) that … the debtor shall be informed at the time or before the

agreement is concluded:

– of the credit limit, if any;

– of the annual rate of interest and charges applicable from the

time the agreement is concluded and the conditions under

which these may be amended;

– of the procedure for terminating the agreement

and this information shall be confirmed in writing.

© that where a debtor overdraws his current account with the tacit

agreement of the creditor and that account remains overdrawn

for more than 3 months, the creditor must inform the debtor in

writing not later than 7 days after the end of that 3 month

period of the annual rate of interest and charges applicable”.

[noimagination]

Thank for the explanation rory.