abbey default... moved my thread from abbey section

[antz99]

Hi everyone

 

Wondered If anyone can offer me any advice.

 

On the 1st of march 04 I opened an abbey account with a visa electron card no overdraft.

 

In 2005 I used my electron card a few times online and without knowing I did not have any money in my account as I believed I did as I was only spending a few pounds a time ..

 

To cut a long story short I incurred a charge of £149.53 which was absurd. My dad dealt with it and was in negotiations with them saying it wasnt right and so on. My mum being loving payed this off thinking she was being helpful when she saw the debt on my desk the account defaulted slightly before this but we were gonna carry on fighting it.

 

account defaulted: 30th april 2005

 

Mum paid: 9th June 2005... although I didnt want her too she paid it only 9 days after default was given ......... She was obv just looking out for me but feel I could of carried on the fight if she didnt pay.

 

I never received a default notice as I have my file with all the info I received in front of me .. all I have is the letter where we sent my card back as they closed the account and were making threats of defaulting the account if payment was not recieved.

 

Any help would be appreciated, if you need more info just ask

 

Tried 2 letters a year or so ago asking for it to be removed but more begging than using any proper legislation or talking about the default notice that I have never seen as I was unaware this was the case .

 

thanks

 

Anthony

[antz99]

anybody hehe ??

[car2403]

Bank accounts are peculiar entities when it comes to defaults.

 

As you didn't have an overdraft agreement, but did go overdrawn, I do still think you can challenge this using the same process.

 

If you want to see what I mean, see my Barclays thread, here;

 

http://www.consumeractiongroup.co.uk/forum/barclays-bank/110184-car2403-barclays-bank-default.html (Default removed )

 

This is the bit that should interest you, IMHO;

 

There's no need for them to send you a Default Notice, as they would have outlined the process required to terminate the agreement when you took it out - that would have been that they would formally demand repayment within 7/14 days and would issue a Termination Notice if you didn't comply.

 

The issue is not whether they have a Termination Notice that was sent to you - that is easily recreated anyway and would be accepted by a Judge, sadly. The issue you need to press them on is whether they have an enforceable agreement. In order to be enforceable, they should have complied with the requirements of the Consumer Credit Act 1974.

 

Briefly, they won't have complied with the requirements of the Act under Part V, s.60/s.61, as that requires a correctly formatted, properly executed credit agreement.

 

What they will do is rely on a Determination made by the OFT under s.74. This allows them to enforce the debt, without an enforceable agreement under Part V, as it exempts overdrafts from those requirements.

 

The issue for the Bank, though, is that the OFT's Determination has "criteria" attached to it that they must comply with to benefit from it - if they don't comply with those criteria, they need an enforceable agreement. We already know they don't have one.

 

The criteria are;

 

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 s.74(3) and (3A) and s.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

 

 

If they can't comply (or have evidence to show they complied) with the parts in red, the debt is unenforceable unless they can produce a correctly executed credit agreement

[antz99]

Thank you for your reply car

 

Looks like you won the battle and the war haha

 

I have sent off to get my statements for this account with abbey ...when I receive them I will work out the percentage of charges that have been made up

 

Do You think I should then send the template off regarding the default notice never being served or do you think they can always get out of that one ..

 

IN your honest opinion what would be the best way to address my default..you talk about the CCA AND DATA PROTECTION ROUTE ... ..

 

thanks

ant

[car2403]

CCA them now and see what comes up - if they don't have an agreement, use the DPA route to withdraw/revoke consent and hit them with both together.

 

Statements of account will help you along the way.

[antz99]

Thanks my friend I will do that ASAP ...

 

 

one question though which I read in one of the threads I came across

 

" banks do not need to issue a defualt notice on bank accounts /current accounts only loans..

 

the data protection route seems to be a lot more confusing do they have templates for that on the site .... shall I send the CCA FIRST AND THEN THE DATA PROTECTION LETTER

 

THANKS AGAIN

[antz99]

Sorry also ...

 

The CCA AND DATA PROTECTION ROUTES ... WHAT IS THE DIFFERENCE TO THE ASKING FOR PROOF OF A DEFAULT NOTICE

 

ARE ALL APLICABLE to me with an overdraft that went into default although an overdraft never existed..

 

thanks

[car2403]

They don't need a default notice for an overdraft - they do need a termination notice, however, usually. The difference is technical, but the main part is that they are covered by different sections of the Act.

 

There are templates for the D.P.A letters (Surleybonds link in my sig) but you are betting off CCA'ing them first, IMHO.

 

Mind you, there are others that would disagree with me, who would say that you should send a SAR requesting all notices relating to the account - including the termination notice - to be sure you'd get it.

 

For me, I prefer to see them squirm over not being able to provide an agreement, then whack them with the information they've been hiding against all along, leaving them no hiding place at all.

[antz99]

"then whack them with the information they've been hiding against all along, leaving them no hiding place at all".

 

Sorry what do you mean by this statement

 

I will follow what you think ... where is the best place I can find an CCA that can be relevent to my case as I am very confused lol

 

thanks

[BankFodder]

They are required by the banking code to send you a "formal demand".

http://www.consumeractiongroup.co.uk/forum/faqs-please-read-these/149317-banking-code-2008-a.html?garpg=44

 

If they have not done so then they are in breach of the code - assuming that this requirement was in the version that existed at the time you were defaulted. You would need to obtain an historical version.

 

If they have defaulted you or otherwise notified the CRA without first having made the formal demand then they are in breach of the Code.

I would say that this is grounds for complaining to the IC as the permission which you gave to them to pass your details on to CRAs would have been subject to the requirement that they satisfied their Code obligations.

[antz99]

thanks .. what do you think should be my first move in my case against the abbey. I have sent off my SAR for my statements and am waiting for them

 

I am a little confused as I seem to feel there are different ways I can approach this. I would like to get as much personal opinions as possible

 

"They have defaulted me with experian and I never received any formal letter from the abbey stating their intended action.

[car2403]

A complaint with the ICO should be in order - his guidance on the data protection act and further technical guidance on filing defaults with credit reference agencies demand that they send a formal notice of intention to file the default, whether CCA regulated or not, before filing the default.

 

The issue will be where they tell the ICO that they did send one and he accepts that - you will need to escalate it at that point, (internally with the ICO) so that they get to see the actual documentation that was sent. IMHO, a company record of a document being sent isn't the same as the sending of that document.

[antz99]

sorry I HAVE got very lost now

 

Is it possible to explain what options are available for me now...

 

thanks

 

Ant

[antz99]

Hi sorry does anyone know..

 

What way I can take my claim once I get my statments from abbey ....

 

Want to get my £148 default removed as It has been made up of wholly penalty charges and was on an overdraft which was never given to me .. however they say in Info I have seen that they still honour the payments..

 

NEED TO KNOW STEP 2 ONCE I HAVE MY STATEMENTS THANKSSSSS GUYSSSS

[antz99]

I sent the S.A.R - (Subject Access Request) letter to Abbey and they

responded ON THE 26TH OF jUNE as follows;

You have asked for copies of your bank statements, which we assume is to enable you to reconcile your bank charges. We are happy to provide these to you and acknowledge receipt of your £10 fee.

The transactional information available on our systems, covering the current year will be sent out in the form of individual duplicate statements. You should receive these within 5 to 7 working days of the date of this letter.

I enclose a summary of charges debited from your account which covers all charges going back to 2002.

They have sent me two A4 sheets from feb 2004 to June 05 which shows;

Total Cleared Transaction Charges -£160

Total Unpaid Direct Debit Charges -£0

Total Unpaid Cheque Charges -£0

Total Unpaid Standing Order Charges -£224

Total Unauthorised Overdraft Fees -£0

Total Cleared Transaction Refunds £43.04.

The letter states that I will receive statements as I have only received this spreadsheet on charges, within 4 or 5 working days of the letter dated 26th June 2008 …..LATE !

 

The letter goes on to give their advice regarding the current case plus;

1. You may choose to take any complaint or claim against us to either the FOS or the Courts in Scotland.

2. Your right to refer your complaint to the FOS will not be affected. The FOS provides a convenient alternative to the courts, and is free for consumers. However, as already explained, you should be aware that the FOS has, at our request, decided not to determine these complaints for the time being until the test case is resolved.

3. However, if you nonetheless wish to take any claim you may have to the courts in Scotland, you should be aware that the timing of when to raise a claim against us may be important. As such, you may wish to seek independant advice on filing a claim now to protect your rights (although you will have to pay a court fee). If you do this, you should be aware that the bank will immediately apply to the court to put your action on hold until the resolution of the banks legal proceedings with the OFT..

I HAVE USED SOME OF WHAT HME. 4 X4 AS HE HAD THE SAME LETTER BY THE LOOKS OF IT THANKS SAVES ME TYPING IT ALL UP HEHE.

[antz99]

anybody still have not received the statements on previous letter as stated ??

 

Bankfodder ? car ? anybody hehe

[car2403]

You should consider this, IMHO;

 

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/6971-data-protection-act-non.html

 

Failing to reply to a DPA SAR, or not supplying everything they should within the timeframe of the Act gives you a legitimate cause of action to sue them and to ask the Court to order their compliance with your request and to pay your damages along the way.

 

If you don't fancy Court, there is always the ICO, but you'll have a wait - it took 6 months to look at my last complaint I sent to them. Court may be daunting and drawn out, but at least you can manage your own claim.

[antz99]

Thanks Car, shall I first write a letter asking where the statements are as they stated they would be with me 3 to 5 working days after I received their first letter with a break down of charges.

 

Or will it be better to go straight for the N1

[antz99]

CAN I SEND THIS LETTER.... IS IT STILL OK EVEN THOUGH IT WAS DONE IN 2006.. DO I NOT USE THE DATA PROTECTION ACT 2002??

 

ETTER BEFORE ACTION

Section 7 – Data Protection Act 1998

 

Dear Sir/Madam

 

Account: xxxxxxxx

 

I am in receipt of the documents that you have supplied in response to my Data Protection Act information request dated (Insert Date). The disclosure of personal data is incomplete in that at least the following documents are missing.

 

(Adapt this next section to your situation)

 

1) You have failed to provide a complete list of transactions and charges.(Add details of missing period - or a transaction that you know about which is not included)

2) You have provided no notes, or documents relating to any legal action between you and myself.

3) You have provided no notes, or documents relating to instances of manual intervention.

 

This is not an exhaustive list by any means, it is just an example of some of the information I am missing.

 

Accordingly, I have to tell you that you have not yet complied with your obligations under the Data Protection Act 1998.

 

You have a further (Insert number of days remaining) days to comply.

 

Yours faithfully,

[antz99]

any advice on my template above ?

[antz99]

[antz99]

would really like some opinions on course of action to take against Abbey for not supplying me with my statements and cashing the cheque and stating in a letter dated end of June that the statements will be with me in 4 or 5 working days AND JUST INCLUDING A SHEET OF THE CHARGES ?

 

been on holiday so not chased up but will do now they think we will all just forget NO WAY....

[antz99]

Hi everyone..

 

I am still chasing my statements from abbey which in a letter in July said they would be sent out to..I have tried chasing it up by phone which I know is wrong and they said yes they will be with you and they have not turned up.

 

I received a letter in July which I have put on my thread above about them sending me a sheet of charges and no statements.

 

 

I know I can take the route of

Data Protection Act Non-Compliance - Particulars of claim

 

But does anybody have an idea of a letter I can send them to get the copies of my statements. They have cashed the cheque in August but I have received nothing !

 

thanks

[Lawsonm19810]

ANTZs

 

I was in the same situation as you but i had a contact in the legal team once i started my legal proceedings... once i got her involved managed to get my SAR within i think it was 2 weeks...

 

Also I have checked my credit file today and noticed dispite Abbeys solicitor filing defence they have erased my default... LOL does that smell guilty or what...

 

Im going to have another look at your thread to see if there are anythings i did that you havent yet... but you did say to keep you updated so i am ;-)

[Lawsonm19810]

Antz I ave a question for you... Did you send a £10 cheque or P/O to get your SAR...????

 

Because in part of your thread it say abbey where requesting the fee, so im assuming you didnt send the cheque. They are very an*l when it comes to that...