Cause of action/statute barred

[charharp]

All evidence says COA is breach of contract. Unplanned overdraft not being repaid in time is breach of contract and therefore limitations start from the date of no repayment of overdraft. I've yet to see anything to refute this but wouldn't take on DCA's without seeing tried and tested cases.

[fletch70]

But when is "in time" .

[charharp]

I would have thought at the end of the following month at the latest.

[fletch70]

And you know what thought did........ (as my mother used to say)

[charharp]

Seeing as though my credit file had me 1 month in arrears the following month suggests this is conservative estimate.

[Peterbard]

I'm confused as to why Brig has stated on an OD it is from the date it was formally recalled when he has previously been adamant it was from last payment. I still believe there is a big difference between an overdraft account that is recalled and one that goes into unplanned overdraft and is never corrected. We need to see some cases on this. I can't find any.

 

There is statute in the European directive amendment regulations 61B 74(A) and (B)

[Peterbard]

. Unplanned overdraft not being repaid in time

 

You mean when it is called in ?

[charharp]

No I mean not repaying it when the bank expects you to. Either the month or the month after I went into an unplanned overdraft my credit file showed me 1 month in arrears, then it continued the next month 2 months arrears ect. Surely 1 month arrears is an indication of missed payment? I don't see how you can be in arrears without missing a payment.

[BRIGADIER2JCS]

I'm confused as to why Brig has stated on an OD it is from the date it was formally recalled when he has previously been adamant it was from last payment. I still believe there is a big difference between an overdraft account that is recalled and one that goes into unplanned overdraft and is never corrected. We need to see some cases on this. I can't find any.

 

Overdrafts are not credit accounts and have an exception tp parts of CCA 1974

 

 

 

 

An account not appearing in credit reference files is an excellent 'indicator' on the status of the debt.

Edited December 23, 2013 by ims21

[charharp]

Are you aware of anyone who has has SB accepted by DCA 6 years after last payment but less than 6 years before it was recalled?

[sequenci]

All evidence says COA is breach of contract. Unplanned overdraft not being repaid in time is breach of contract and therefore limitations start from the date of no repayment of overdraft. I've yet to see anything to refute this but wouldn't take on DCA's without seeing tried and tested cases.

 

One overdraft case worth looking at is: Lloyds Bank v Margolis. Cases (though non-overdraft-related) which could be also worth looking at are: Norton v Ellam and Re Brown's Estate.

[BRIGADIER2JCS]

Are you aware of anyone who has has SB accepted by DCA 6 years after last payment but less than 6 years before it was recalled?

 

I believe there are many cases of this happening C.

 

I probable have some 'on paper' in the office.

 

It is all very well for individuals quote chapter and verse of statute and case law, with out viewing what in practice may happen.

 

I believe and always will 'Rule are for the obedience of fools and the guidance of wise men'!

[sequenci]

Overdrafts are not credit accounts and have an exception tp parts of CCA 1974

 

 

They are only exempt from Part V of the act - The form and content of agreements. They are still a form of credit.

[charharp]

One overdraft case worth looking at is: Lloyds Bank v Margolis. Cases (though non-overdraft-related) which could be also worth looking at are: Norton v Ellam and Re Brown's Estate.

 

I'm trying to see your side of the argument but I am finding it hard considering you are quoting one case where the contract was signed in 1938 and the other one is in India.

[BRIGADIER2JCS]

See post 537# C.

[charharp]

I believe there are many cases of this happening C.

 

I probable have some 'on paper' in the office.

 

It is all very well for individuals quote chapter and verse of statute and case law, with out viewing what in practice may happen.

 

I believe and always will 'Rule are for the obedience of fools and the guidance of wise men'!

 

There must be some people on here who have had this argument with DCA's about overdrafts.

[sequenci]

I'm trying to see your side of the argument but I am finding it hard considering you are quoting one case where the contract was signed in 1938 and the other one is in India.

 

English court, no?

[sequenci]

See post 537# C.

 

All cases are still good law. Well last time I looked.

[charharp]

All cases are still good law. Well last time I looked.

19th century India Sequenci? No offence but it's farcical.

 

After reading it anyway it backs up my point, the creditor is under no obligation to make a demand....this is irrelevant as I have said many times because it's not when the creditor makes a demand it's when they first have the option to. BMW v Hart was the same. Everything you produce backs up my stance.

[sequenci]

I think the main difficulty with overdrafts is that you need to look to the terms and conditions - and their constuction as to what would constitute a breach, and more specifically when a creditor could sue for the full amount outstanding. Some may be able to call in the overdraft whenever they so wish - others may breach if the holder of the overdraft does (or does not) do something.

[sequenci]

19th century India Sequenci? No offence but it's farcical.

 

After reading it anyway it backs up my point, the creditor is under no obligation to make a demand....this is irrelevant as I have said many times because it's not when the creditor makes a demand it's when they first have the option to. BMW v Hart was the same. Everything you produce backs up my stance.

 

Indeed. And it's what I've been saying the whole time.

 

For the record, it doesn't matter how old law may or may not be. If it's good law it's good law. Some of the law regarding the powers around bailiffs go back to the middle ages, that gets discussed on CAG (and everywhere else in the advice and legal world) every day. Of course, you can argue that it is facical too I guess. Slightly off topic but it makes a good point. Remember that key legal arguments start somewhere - and they evolve generally in a piecemeal fashion as time goes by.

[charharp]

I think the main difficulty with overdrafts is that you need to look to the terms and conditions - and their constuction as to what would constitute a breach, and more specifically when a creditor could sue for the full amount outstanding. Some may be able to call in the overdraft whenever they so wish - others may breach if the holder of the overdraft does (or does not) do something.

 

Maybe because creditors are free to take away an overdraft anytime this makes 6 years from last payment stand up. We need court decisions on this, preferably in post Roman England.

[sequenci]

Maybe because creditors are free to take away an overdraft anytime this makes 6 years from last payment stand up. We need court decisions on this, preferably in post Roman England.

 

It doesn't stand up at all. With all limitations situations, and I mean every single one - the time starts to run from the first point that the creditor can sue for the whole amount outstanding. This will not be the date of the last payment as there is going to need be some actual breach of the contract first.

 

Take my overdraft, my bank has a requirement that I *have* to pay in at least £1,000 a month. Should I fail to do this they can then terminate the facility. I guess that is mildly analogous to the Hart case in that respect.

[charharp]

True a breach is required. Technically however a bank can withdraw an overdraft at any time, therefore when they withdraw it may be completely irrelevant in the eyes of the law as they are free to do it anytime they want to. Therefore limitations would run from last acknowledgement of the account which would be last activity by the debtor on the account. This is pure speculation on my part but makes sense.

[sequenci]

True a breach is required. Technically however a bank can withdraw an overdraft at any time, therefore when they withdraw it may be completely irrelevant in the eyes of the law as they are free to do it anytime they want to. Therefore limitations would run from last acknowledgement of the account which would be last activity by the debtor on the account. This is pure speculation on my part but makes sense.

 

They may be able to withdraw at anytime, but it's almost certainl that they would need to serve notice on the other party to do that.