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help advice redetermination hearing 120808


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ccj against me issued 130608 from northampton re Natwest application....have been on dmp with cccs since july 07 ...creditors being paid reg on usual pro rata basis and last few months seemed to have settled into some routine when Nat West xfered debt to their sols Irwin Mitchell (consisted of 2 monthly payments different acc nos ) who req one monthly payment (amalgamating 2 ).....cccs duly infd and reset comp etc and yes a hiccup and part payment sent.....next thing call centre contacts me does not accept explanation .........Irwin Mitchell letter req contact which I made and explanation not accepted.........ccj papers recd 290408 duly completed on cccs advice and retnd ( explanation included and full paymenst resumed)...............ccj issued 130608 for monthly payment £330 and sols/court fees £360...

CCCS contacted and application for redetermination made which has now been set for 120808.......................

The payment I have been making to Natwest has been £90 so you can see its a huge increase....................

Only advice CCCS has given is to turn up and produce dmp / income expenditure etc

Court have already had these details for orig date and with redetermination application....................aany advice on what to say please or do !

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no ppi on loan.............loan was made to pay off nat west credit card .....the bank contacted me by phone with special offer ! ............part of the overdraft came from nat west continuing to take loan repayments from my acc which they would not close until o/d limit reached .................they were infd and had standard letter for cccs dmp last july...........a/c closed 1207......................and to add insult to injury keep sending me credit card cheques despite me cutting up card and sending it back (nil balance on acc £10K credit available ).

No sar or cca made spoke to cccs advised against.

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no ppi on loan.............loan was made to pay off nat west credit card .....the bank contacted me by phone with special offer ! ............part of the overdraft came from nat west continuing to take loan repayments from my acc which they would not close until o/d limit reached .................they were infd and had standard letter for cccs dmp last july...........a/c closed 1207......................and to add insult to injury keep sending me credit card cheques despite me cutting up card and sending it back (nil balance on acc £10K credit available ).

No S.A.R - (Subject Access Request) or cca made spoke to cccs advised against.

 

 

Wll I'm sorry but the CCCS advise is wrong. You should SAR & CCA them asap and send by special delivery.

 

You need to make an application to the Court for the Creditor to have to provide the original loan agreement to you and the court to show whether the loan is enforceable or not. You alos need to ask for a stay on enforcement proceedings untill they produce the agreement.

 

If you are on a low income you will get fee exemption. Its a n244 application form.

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LEGAL AUTHORITY FOR OVERDRAFTS AND THE CONSUMER CREDIT ACT

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."

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to update .............attended hearing , showed judge all correspondence etc and found in my favour......will post full details when my copy arrives.

Thank you for your interest and support, no doubt this is round two and there will be more ahead:)........

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