Spinningfish V The Woolwich

[un1boy]

Ok, I'll check my papers later.

 

The account was "upgraded" to a student account in 2002, everything stayed the same except the overdraft limits and lack of interest charged!

[spinningfish]

I don't know whether you're the same as me Un1, but when I sent my SAR, all I received were literally just transaction details for the last six years, and a list of charges.

 

When they put the account through Heatons LLP solicitors, I sent a CCA request, recorded delivery, and never heard from any of them again.

[un1boy]

I don't know whether you're the same as me Un1, but when I sent my S.A.R - (Subject Access Request), all I received were literally just transaction details for the last six years, and a list of charges.

 

When they put the account through Heatons LLP solicitors, I sent a CCA request, recorded delivery, and never heard from any of them again.

 

I have written confiramtion that they don't have the original current account or overdraft applciation forms.

 

The sar was pretty comprehensive, but doesn't have the letter they allege they can produce to satisfy their legal obligations - I don't see how producing a letter issued in 2000 for an overdraft when the overdraft was chagned in 2002 can satisfy their legal obligations.

 

I am reluctant to acknowledge the debt, so don't really want to mention that to them anyway!!!

[spinningfish]

Same here.

 

I'm just wondering what I now need to send back to them, as I have sent the SAR, and am well over the 40 days, and have also sent a CCA request and am well over the 30 days there.

 

It's all far from being clear cut!!!

[spinningfish]

bumpety bump!

 

We need to keep this one current.

 

Thanks.

[Peterbard]

Hi

 

Overdrafts are normally not subject to those elements of the Act governing form and content of an agreement. This is because the OFT has issued a Determination under Section 74(3) of the Act excluding overdraft agreements from the need to comply. As a result of this there is usually no written agreement that a consumer can request under Section 78 of the Act. However, I should note that any Bank wishing to avail itself of the benefit of the Determination must notify the OFT of its intention to do so and is required to provide information to the prospective debtor. Specifically, the creditor must provide, in writing, at the time the agreement is concluded or before details of the credit limit if any, the annual rate of interest and any charges available, and the process for terminating the agreement. Typically banks make such information readily available via a variety of media on an ongoing basis.

I went through all this with my sons student account,.Bank accounts of course are not covered by the cca as they are regulated by the FSA and there fore do not have to produce documents asked for under that act with the above acception because the overdraft is unfortunately due to it's exception from part 5 their is no agreement as such so none can be provided .

In the end i just sent them a letter as advised by the FOS saying that i was willing to go to court over the amount of interest they had charged and they would have to provide the orriginal agreement whether it was covered by the cca or not. I recieved a letter a week or so later saying that they had decided it was not in their interests because of the costs involved to pursue this any further and that was that.

Best regards

Peter

[un1boy]

Hi

 

Overdrafts are normally not subject to those elements of the Act governing form and content of an agreement. This is because the OFT has issued a Determination under Section 74(3) of the Act excluding overdraft agreements from the need to comply. As a result of this there is usually no written agreement that a consumer can request under Section 78 of the Act. However, I should note that any Bank wishing to avail itself of the benefit of the Determination must notify the OFT of its intention to do so and is required to provide information to the prospective debtor. Specifically, the creditor must provide, in writing, at the time the agreement is concluded or before details of the credit limit if any, the annual rate of interest and any charges available, and the process for terminating the agreement. Typically banks make such information readily available via a variety of media on an ongoing basis.

I went through all this with my sons student account,.Bank accounts of course are not covered by the cca as they are regulated by the FSA and there fore do not have to produce documents asked for under that act with the above acception because the overdraft is unfortunately due to it's exception from part 5 their is no agreement as such so none can be provided .

In the end i just sent them a letter as advised by the FOS saying that i was willing to go to court over the amount of interest they had charged and they would have to provide the orriginal agreement whether it was covered by the cca or not. I recieved a letter a week or so later saying that they had decided it was not in their interests because of the costs involved to pursue this any further and that was that.

 

Best regards

Peter

 

Is it right though, that if they tried to take someone to court they would have to provide the original documentation?

 

I have had a different experience with the FOS and I am scared now that they will try to take me to court.....I go and counterclaim that I want to see the original letter/application and the Judge throws it out?

 

What you reckon?

[Peterbard]

Hi

In My opinion

If you are taking a bank to court to query charges irrespective of whether the agreement is covered by the cca they will need to prove that you agreed to those terms of business.I do not see how they can do this withut producing the agreement. They may be able to prove that you had the money but they cannot prove you agreed to the interest rates etc.

 

Regards

 

Petr

[Peterbard]

HI Again

Maybe the difference was where i was querying the interest on a student account not the ballance owed.(Although the two werevirtually the same)

Just a thought

 

Best

regards

Peter

[spinningfish]

Interesting point. So, if they have not provided detailed information in respect of the overdraft, as a result of the SAR sent, then they are in breach of the data protection act?

 

Essentially they need to prove that WE agreed to having an overdraft on the account in order to chase the debt.

[ncf355]

So,

 

Peter - are we saying here that if they cannot produce your signed agreement to the rate and its variable state, we could be in a position to claim back any interest charged on an overdraft?

[Peterbard]

Hi

The bank are not required to give an agreement as per the previos posting however they are suposed to advise he debtor of the terms of the overdraft prior to it's commencement.

You would not be able to request this using a cca 77 request as this particular item is not mentioned an SAR might prove more fruitful. It is possible that if you could say that the bank did not provide this (This is a big if)information then you could say that you did not agree to the amount of interest charged or whatever. In which case you would IMO be justified in filing a claim for a refund

 

Besrt regards

 

Petr

[tinkerbell20]

intersting thread

[un1boy]

I have a trial this week testing this re an overdraft -the bank did not give me the required info, cannot prove they did (only a note on the system saying they did, apparently) but nothing showing what was on the alleged letter.

 

Since I claimed against them saying that sec 78 applies as they have not complied with the OFT's determination, they have counterclaimed. The judge at the allocation hearing said that they may have walked into sec 127 themselves by counterclaiming -ill let you know how it goes.

[tinkerbell20]

Why would they have walked into it themselves?

 

Does that mean that the judge was saying you would have lost if they hadn't counterclaimed?

[un1boy]

Why would they have walked into it themselves?

 

Does that mean that the judge was saying you would have lost if they hadn't counterclaimed?

 

No - they were basically saying that I was "pre-emptive" by claiming against them before they calimed against me.

 

He then said that they have walked in the unenforcability factor of section 127 by counterclaiming.

 

He was effectively saying that if I was bringing the claim aginst them without them claiming agsint me, it would have probably been morem difficult, but the fact that they have claimed now forces the court to go through section 127.

 

The judge kind of understood the points of my claim, but not exaclty.....the end result was what I wanted though, so I didn't really press it more.

 

He did say, they "may have". Obviously, he couldn't give judgement because it was an allocation hearing.

[RubyRose]

UN1Boy,

I am keen to know what happens.

 

Ruby

[tinkerbell20]

No - they were basically saying that I was "pre-emptive" by claiming against them before they calimed against me.

 

He then said that they have walked in the unenforcability factor of section 127 by counterclaiming.

 

He was effectively saying that if I was bringing the claim aginst them without them claiming agsint me, it would have probably been morem difficult, but the fact that they have claimed now forces the court to go through section 127.

 

The judge kind of understood the points of my claim, but not exaclty.....the end result was what I wanted though, so I didn't really press it more.

 

He did say, they "may have". Obviously, he couldn't give judgement because it was an allocation hearing.

 

 

ok well hope it goes your way................................

[ncf355]

Un1

 

Under S142(1) you are entitled to a determination under s127(3) so there should be no difficulty - I had to educate a judge on this

[un1boy]

UN1Boy,

I am keen to know what happens.

 

Ruby

 

I'll keep you updated

[un1boy]

Un1

 

Under S142(1) you are entitled to a determination under s127(3) so there should be no difficulty - I had to educate a judge on this

 

Hiya

 

I don't understand how sec 142(1) would be relevant - wouldn't sec 127(3) be more fitting?

[ceedy]

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

 

Chopped a bit out to shorten it ..

 

 

THE DETERMINATION

 

 

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."

 

 

Hi to all being a newbie to all this .. but searching for help for my daughter.. was wondering.. if this 3months +7days applies..

 

My daughter froze a joint account after her partner left ( Sept 07)

Nothing was said of any OD.on it.. her partner blocked his imminent salary going in, (this probably caused the initial OD) nothing was said by the NW bank. then in May 08 she suddenly had a letter saying she had a large OD and needed to sort it ???

Seems without any communication since sept ..?? NW have been a slack !! but not in adding interest during that time [

 

any help advice here please ?????

 

 

take care ALL

 

C

[granada]

Sorry to be so dense - can you clarify - can I ask the bank for a copy of the CCA or is it another type of document I need for the bank. I have an overdraft which I cannot pay back - is there a template I can use? I haven't received a copy of the CCA from Barclaycard, sent six weeks ago so what should I do now with regard to Barclaycard?

[pookeymonkey]

subbing

[Having_A_Knightmare]

Great thread....Subbing

 

So basically I am been taken to Court by a DC for an overdraft.

 

ON the POC it says "By an agreement made in writing" bla bla bla.

 

So I can ask for this writen agreement as they are saying one exists??

 

Any thoughts