Unsecured Loan Claiming as Overdraft

[RedFinn2012]

Hi guys,

Really feeling a bit as though I'm in over my head and could do with a bit of help from you. Without going into masses of detail straight off the bat, the background is:-

In 2005, I got into difficulty and my bank (HSBC) wrapped up all my credit card debt, overdraft, and loan into a 'managed loan', total of which was circa £10K. Not allowed any further credit or overdraft.

Fast forward to 2011, I was again in trouble, had an accident in August 2010 in which I broke both legs, which was the start of the slippery slope and to cut a long story short, I defaulted on this loan, of which there was £3193.00 outstanding (for every £100 I paid they took about £60 as interest, so feel I did rather well to get to this point)

Also took a parachute account and left my current account, which was £59.00 O/D due to charges.

Various letters received over the years but I've now had one from Restons Solicitors on behalf of Arrow Global, claiming £3252.00 for an overdraft, how convenient. They also quote my old current a/c number and not the loan a/c number.

I sent a letter back requesting that they comply with pre-action protocol and stating that as I have never had an overdraft even approaching that amount, could they provide the detail.

They have responded basically telling me to review my own paperwork etc.

Can you help me please?

[RedFinn2012]

Re: Unsecured Loan Claiming as Overdraft

Thanks for taking the time to reply, will do as you suggest and send it back to Arrow, as you say if nothing else it simply reiterates that I have tried to tell them. I do think they're being duplicitous as I don't see how they can not know when they've entered it correctly on my file.

I'm kind of semi-waiting for the papers to arrive any day but think that would prove to be a mistake on their part. Thanks again for the advice, will update as and when

[Diana M]

Re: Unsecured Loan Claiming as Overdraft

I've screenshot my credit file, on the offchance that they get wise to their mistake, ahead of hopefully getting my final current a/c bank statement from HSBC which will show no overdraft.

Wise move.

I saw those screenshots you uploaded which were of their own CRA file entry showing it was a loan.

My 'inner cynic' wonders whether they are/were deliberately trying to deceive you. Heaven forbid a debt purchaser would do such a thing.

Di

[Diana M]

Re: Unsecured Loan Claiming as Overdraft

Their exact wording is:-

We thank you for your letter received on 12/04/2017 and acknowledge your request for documentation pursuant to the Consumer Credit Act 1974.

We do not accept that we are the creditor as envisaged by the above statute.

This account arose under an overdraft facility. Even if this account was regulated under the Consumer Credit Act 1974, Part V of the act does not apply to this facility and there will accordingly be no executed agreement.

In addition, we confirm:
The account is in default.
The total sum outstanding is £3252.05
The amounts which will become payable comprise interest and costs, depending on what enforcement action is taken against you.

We return the payment of £1.00

Looking at this logically (I try ) you've not told Arrow that it's not an overdraft. You've only told Restons that you categorically deny ever having an overdraft whilst sensibly not telling them it was a loan (let them figure that out for themselves).

I see no harm in you writing back to Arrow with a copy of your letter to Restons simply saying the same thing (denial it was an overdraft).

Enclose a copy of your CCA Request and the £1 postal order which they returned and tell them politely that you expect them to comply with your statutory request.

I know it's a faff to keep sending letters but these debt purchasers handle thousands upon thousands of accounts and seldom communicate effectively with their agents (i.e. Restons etc) so don't know what you've told them (Restons).

Also if you find yourself in court it's good to be able to demonstrate that you did try to tell them but they stuck their fingers in their ears.

Di

[RedFinn2012]

Re: Unsecured Loan Claiming as Overdraft

In the interim, I've screenshot my credit file, on the offchance that they get wise to their mistake, ahead of hopefully getting my final current a/c bank statement from HSBC which will show no overdraft.

Just to be on the safe side

[RedFinn2012]

Re: Unsecured Loan Claiming as Overdraft

Their exact wording is:-

We thank you for your letter received on 12/04/2017 and acknowledge your request for documentation pursuant to the Consumer Credit Act 1974.

We do not accept that we are the creditor as envisaged by the above statute.

This account arose under an overdraft facility. Even if this account was regulated under the Consumer Credit Act 1974, Part V of the act does not apply to this facility and there will accordingly be no executed agreement.

In addition, we confirm:
The account is in default.
The total sum outstanding is £3252.05
The amounts which will become payable comprise interest and costs, depending on what enforcement action is taken against you.

We return the payment of £1.00

[Diana M]

Re: Unsecured Loan Claiming as Overdraft

Hi Diana,

Thanks for your advice and have removed the images, however although they're saying that they're not the creditor etc. they're insisting that it's an O/D and, as such, there isn't an executed agreement anyway. That's what is bothering me.

It should be bothering them not you

The Claimant has to prove their case. This means if they did issue court proceedings for an £3k overdraft they would have to prove you had a £3k overdraft which you didn't (according to you and according to your CRA file which I saw before you deleted it).

They won't be able to get anything from HSBC which isn't in their files so if it ain't in the SAR then it never happened. If they come up with a reconstituted document you'll be able to cross check it for 'honesty and accuracy' with the contents of your SAR.

Can you clarify whether the Arrow letter said they would be asking the original creditor for the documents to comply with your CCA Request or was it a flat refusal?

Di

[RedFinn2012]

Re: Unsecured Loan Claiming as Overdraft

Hi Diana,

Thanks for your advice and have removed the images, however although they're saying that they're not the creditor etc. they're insisting that it's an O/D and, as such, there isn't an executed agreement anyway. That's what is bothering me.

I guess I need to get cracking on HSBC and get my last statements and any credit agreements.

[Diana M]

Re: Unsecured Loan Claiming as Overdraft

As you can see, they are correctly displayed on my credit report (added together, they make the magic number) and am confident that if they want to press ahead that under CPR it will all come out in the wash, I doubt that even HSBC could add £3K to my current A/C without making it obvious. Just wish I had some statements to hand.

See my previous post and remove/delete those images since you could be identified by them.

Too much information in public is not a good thing.

Di

[RedFinn2012]

Re: Unsecured Loan Claiming as Overdraft

Hi PT2537,

As you can see, they are correctly displayed on my credit report (added together, they make the magic number) and am confident that if they want to press ahead that under CPR it will all come out in the wash, I doubt that even HSBC could add £3K to my old current A/C without making it obvious. Just wish I had some statements to hand. BTW, the account start date on the unsecured loan is wildy inaccurate, this commenced circa 2005.

[Diana M]

Re: Unsecured Loan Claiming as Overdraft

Right, the state of play is as follows:-

SAR'd HSBC telling them categorically that I wanted everything they had on me, included maiden name, D.O.B, and previous addresses, and attached a PO for the £10. They sent me a sheaf of computer printouts and a form to fill out if there was anything else that I wanted which comes under the data protection act. - How annoying? £10 PO returned.

CCA'd Arrow on the same day and attached the requisite £1 PO. - Replied saying that they do not accept that they are the creditor (as envisaged by the Consumer Credit Act 1974) and insisting that the amount being claimed arose under an overdraft facility, so there will be no executed agreement anyway.

Wrote to Restons advising that I was sending a CCA to Arrow and that it was not an overdraft - As yet, nothing.

Progress

Your goal was to get to November without a court claim because that's when you believe the debt will become Statute Barred.

You've sent a SAR to HSBC and they've not sent you everything by the sound of it. You can write back and remind them that they're supposed to send you all data held about you not just selected highlights. Some banks do that because they assume you're going to make a PPI reclaim so only need stuff to back it up. Others are just plain lazy.

Anyway you say they've sent you some paperwork so have a look through to see if there are any clues to indicate whether this was an overdraft not a loan or credit card etc etc

You've sent a valid s.77-79 CCA Request to Arrow. They've sent you back your postal order with a silly letter saying they don't envisage themselves as the creditor blah blah blah. That letter probably also said that they would ask the original creditor for the documents anyway. That letter serves as an acknowledgement of your CCA Request.

You've been sent their routine template letter which I've seen time and time again. Once the timescale for their response runs out the debt will be unenforceable in court unless or until they do comply.

You've told Restons what's going on and they've not replied. That's their choice.

The way I see it there's nothing you need to do at this moment in time apart from run forensics over the paperwork HSBC have sent you so far and remind them to send you the rest.

Di

[pt2537]

Re: Unsecured Loan Claiming as Overdraft

Ive just dealt with a case involving Mortimer clarke solicitors where they alleged the account was a bank account, rather than a loan account, its becoming a tactic to avoid having to provide a copy of the credit agreement as far as i can see, as they argued on the case i dealt with that an overdraft would not have a signed agreement thus nothing to disclose under the CCA

[RedFinn2012]

Re: Unsecured Loan Claiming as Overdraft

Hi guys,

Right, the state of play is as follows:-

SAR'd HSBC telling them categorically that I wanted everything they had on me, included maiden name, D.O.B, and previous addresses, and attached a PO for the £10. They sent me a sheaf of computer printouts and a form to fill out if there was anything else that I wanted which comes under the data protection act. - How annoying? £10 PO returned.

CCA'd Arrow on the same day and attached the requisite £1 PO. - Replied saying that they do not accept that they are the creditor (as envisaged by the Consumer Credit Act 1974) and insisting that the amount being claimed arose under an overdraft facility, so there will be no executed agreement anyway.

Wrote to Restons advising that I was sending a CCA to Arrow and that it was not an overdraft - As yet, nothing.

The annoying thing being that I had my old HSBC account paperless, so don't have any old statements lying about. Do I specifically request my last statement for the account from HSBC along with any and all credit agreements? I think this is what I should do.

How is it possible that they can threaten me with court if they don't call themselves the creditor? I was wondering if I should direct them to their own entries on my credit report which clearly shows them being two different a/c's or if this would be a mistake.

Would be very grateful for your thoughts when you get a chance.

Thanks!

[Diana M]

Re: Unsecured Loan Claiming as Overdraft

Thanks Diana for the FCA tip!

. . . . act in accordance with FCA Handbook Rules CONC 13.1.6.

You're welcome

Di

[RedFinn2012]

Re: Unsecured Loan Claiming as Overdraft

Right (she says, dusting hands off) all typed/C&P'd ready to go off tomorrow, please see amended letter to Restons. Thanks Diana for the FCA tip!

Dear Sir,

I refer to your letter of March 29th in which you again state that you intend to commence court proceedings concerning an alleged overdraft balance of £3252.05. I have indeed checked my records and categorically deny even having an overdraft with HSBC, namely because I wasn’t allowed to have one.
To that end, I have formally sent your client a section 77 CCA request (copy enclosed) and respectfully ask that you halt any further proceedings on this account until such time as their documents have been received and act in accordance with FCA Handbook Rules CONC 13.1.6.