Court claim for overdraft.

[Trickky33]

Re: Court claim for overdraft.

Sorry one last point
Non of the dates you have given add up
Sold in 2009 but NOA not sent until 2013. If it were assigned in 2009 then the NOA should be 2009. My suspicion is that it would have been sometime in 2009 that the demand and default were dated.
You also mention asking for full accounting. Have you been listening to another forum called GOODF? Their approcah is flawed and never successful in defending a claim .
I think a bit more clairty is needed. Can you type out the particulars of claim word for word please (removing personal details like account numbers.
I assume you have checked your credit file, in the closed accounts is there anything from LTSB that relates to this or even anything that shows as satisfied .

Ok, I'll start again as I have definitely mixed dates up

I received the claim form on 21/2/14 not 21/3/14. I acknowledged the same day, I assumed I would have 14 days from acknowledgement of service to file my defence?

I then spoke to the branch manager at my local Lloyds TSB, who informed me that they had sold the debt on to Lowell in 2009.

I have written to both Lowell and BCarter asking for a copy of the credit agreement and the Notice of assignment. Neither have been provided as they state they sent the notice of assignment in 30/07/13 and 24/06/13 respectively.

It think that you are right, Lloyds defaulted the account in 2009 as opposed to selling the debt on in 2009.

I did not ask for full accounting, tho Lowells did include a refusal to provide full accounting. And yes, I have yet to see a case where the GOODF approach has defended a claim successfully, I did however ask for a copy of the original credit agreement and Notice of assignment and it was on the GOODF forum that I came across the Statute Barred information.

I have checked my credit file and there is nothing at all relating to Lloyds TSB. I am checking on Noddle, should I check elsewhere?

The particulars of claim are as follows:

This claim is for 1***.**. The amount due under an agreement between the original creditor and the defendant to provide finance and/or services and/or goods.

This debt was assigned to/ purchased by Lowell Portfolio I Ltd on 24/06/13 and notice served pursuant to the law of property act 1925.

Particulars.
Re: Lloyds
A/C No ********

And the claimant claims 1***.**

The claimant also claims interest pursuant to S69 County Court Act 1984 from 24/06/13 to date at 8% per annum amounting to 5*.**.

[jon1965]

Re: Court claim for overdraft.

Hi
Sorry if i sounded abrupt but without exact info its hard to give good advice.
Ok so some info
SB is 6 years from cause of action which with an overdraft is more difficult to gauge. The best consensus i have seen is that it starts when the bank makes a formal demand fir payment. This is why a SAR could be so important.
There is no specific need to provide a cca for an OD but they should have been sending you annual statements.

Your time limits are as i said above so is 33 days from the date on the claim form.

Your cpr request may well get bounced back by BC claiming as it is small claim they do not need to comply. It has not been allocated yet so they should have and i would include that in part of your defence.
I believe but please don't quote me that you do not at this stage need to detail your defence just to itemise it.
Can i suggest you pm andy58 as he is good on the technical side. I will try to ask him but this old tablet is not good for pms

[Trickky33]

Re: Court claim for overdraft.

Hi
Sorry if i sounded abrupt but without exact info its hard to give good advice.
Ok so some info
SB is 6 years from cause of action which with an overdraft is more difficult to gauge. The best consensus i have seen is that it starts when the bank makes a formal demand fir payment. This is why a SAR could be so important.
There is no specific need to provide a cca for an OD but they should have been sending you annual statements.

Your time limits are as i said above so is 33 days from the date on the claim form.

Your cpr request may well get bounced back by BC claiming as it is small claim they do not need to comply. It has not been allocated yet so they should have and i would include that in part of your defence.
I believe but please don't quote me that you do not at this stage need to detail your defence just to itemise it.
Can i suggest you pm andy58 as he is good on the technical side. I will try to ask him but this old tablet is not good for pms

I'm glad You noticed to be honest, I should have been more aware of what I was typing and proof read my posts before submitting. I think tiredness got the better of me. So thanks again.

I'm relieved that I have a little more breathing room/extra time to submit my defence.

I have read and re read the limitations act, and yes I personally would agree with the general consensus, that SB is 6 years from when the bank makes a formal demand for payment. This is slightly disheartening as I think this may have been in 2009.

There is still the fact that Lloyds took my account from credit, to the £300 OD limit and then on to £1300 overdrawn without informing me, but I wouldn't be surprised if this is covered somewhere in my original agreement with them. I may not get any useful information in time but I'll get a SAR off to Lloyds so I can try and establish exactly what I was being charged for and the terms and conditions of the insurance package.

I will Pm Andy to see if he will offer some input, thanks for the heads up.

Just one other thing, when you said that the a SAR would be better sent to the Original creditor as the DC would probably only have info from the time they bought the debt, does this mean the DC may not have evidence of the default date (The formal demand made by Lloyds)? And if this is the case how would they prove in court that the debt is not statute barred?

Thanks again for your help,
Trickky

[jon1965]

Re: Court claim for overdraft.

Hi again

Lowlife may have dates when they think the account was defaulted etc but probably not. The OC will have these details . When debt buyers purchase debts they often do with very little info, sometimes little more than name address telephone number and amount. If you look at the particulars of claim I would suggest that they do not even know what the debt is for

I am sure that you should have been sent statements at least every year

[Guest]

Re: Court claim for overdraft.

I'm glad You noticed to be honest, I should have been more aware of what I was typing and proof read my posts before submitting. I think tiredness got the better of me. So thanks again.

I'm relieved that I have a little more breathing room/extra time to submit my defence.

I have read and re read the limitations act, and yes I personally would agree with the general consensus, that SB is 6 years from when the bank makes a formal demand for payment. This is slightly disheartening as I think this may have been in 2009.

There is still the fact that Lloyds took my account from credit, to the £300 OD limit and then on to £1300 overdrawn without informing me, but I wouldn't be surprised if this is covered somewhere in my original agreement with them. I may not get any useful information in time but I'll get a SAR off to Lloyds so I can try and establish exactly what I was being charged for and the terms and conditions of the insurance package.

I will Pm Andy to see if he will offer some input, thanks for the heads up.

Just one other thing, when you said that the a SAR would be better sent to the Original creditor as the DC would probably only have info from the time they bought the debt, does this mean the DC may not have evidence of the default date (The formal demand made by Lloyds)? And if this is the case how would they prove in court that the debt is not statute barred?

Thanks again for your help,
Trickky

HI

I do not know what little I can add.

It is true to say that the SB cause of action for overdrafts commences upon demand as per section 6 of the act, however this is unless there is a termination clause or contrary contractual term.

From skimming this thread it seems that the initial overdraft was an agreed free £300 facility, I would have thought this would have been a stipulation of the original CA agreement. It is as well to check this to see if there is any mention of consequences of going over limit, we are looking for anything which indicates that the total sum will become repayable.

Since you are arguing SB, I think your argument will be that the further overdraft facility was not an extension of the earlier £300 limit and that when this was breached , this accrued the cause of action(would this still be of any use to you ?). In other words the extras sums claimed are really default charges on the first "loan".

The argument that the later addition to the limit would be supported further if its terms were different, ie if they started to add interest for instance, technically this would be a modified agreement under section 82.
Although still not requiring a signed agreement (as none was needed at that time due to the exemption) it would still be new contract and have to have meet the common law requirements for a formation of contract, offer, acceptance etc, it is difficult to show acceptance , if you did not know it was being applied.

Also I don't know when this came to light but you should have started to receive statements anyway in feb 2011 under the EU directive and also you should have been receiving notices of arrears and default sums together with a notice under section 74B stating the amount of overdraft and charges being applied etc.

EDIT actually it may

[jon1965]

Re: Court claim for overdraft.

Thanks for your input Andy
I knew that there should have been statements etc but I was not sure which bit of legislation said so.

I am hoping my advice of putting in a basic defence that covers the points but not the detail and waiting for the SAR may be the best way forward.

I think my defence would be
1) The account was closed in person on or about xxxxxx therefore no debt exists
2) If this is not agreed then there has been no default notice as required by the CCA
3) Again if 1 is not agreed there have been no statements issued as per the EU directive of 2011 or notices of sums in arrears as per S86 CCA
4) There has been no NOA as per LPA1925

Then when you get the SAR back you can double check and amend if necessary . But how you amend i am not sure

[jon1965]

Re: Court claim for overdraft.

Did someone else reply

[Trickky33]

Re: Court claim for overdraft.

Thank You both Andy and Jon,

There is a lot in your posts to work with, and also a lot for me to get my head around.

I have sent of a SAR to Lloyds and sent off the CPR request to both Lowells and Bcarter. Hopefully I'll get something back from Lloyds shortly, but I wont hold my breath. And I certainly wont bet on getting anything from BCarter and chums.

In the meantime it's plenty of research for me,

Thank you again for your help,

Trickky.

[Trickky33]

Re: Court claim for overdraft.

(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.

This section of Section 82, does this "revoking" of the earlier agreement class as a Default of the original agreement? Could I then argue that this would be the cause of action?

Or am I getting ahead of myself

[Guest]

Re: Court claim for overdraft.

(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.

This section of Section 82, does this "revoking" of the earlier agreement class as a Default of the original agreement? Could I then argue that this would be the cause of action?

Or am I getting ahead of myself

Yes that is the idea, they will undoubtedly say that the increase in the limit was an extension of the original 300 and therefore the COA would be on the recall of the loan.

However you could say that the original loan was covered by the CA agreement and when the limit was acceded the bank had a cause of action. The other sums due were just arrears on the original overdraft.

It is an argument , not sure how successful it would be, a lot depends on what it says in your agreement.

[Trickky33]

Re: Court claim for overdraft.

Ok thanks, Again that is definitely something to work with.

With regards to Section 74b, should I have been receiving notices of Arrears, charges, interest etc. before 2009? And how often should I have been receiving them before 2009?

The reason I ask is that it looks likely that the bank will claim the default date is 2009, so would the EU directive still apply?