Another Newbie/Banks/DCAs/BCOBS/Lending code and Mental Health

[Brainmelted]

Hi
I'm over at my friends today who is already a member here, they recommended this site to me. I'm so glad as I'm needing some help please.

we have been looking all over the forum for guidance on this issue, but maybe cannot see the wood for the trees because we are looking at the wrong posts!


Lending code 9 is clear about lenders treatment of customers who they know have mental health problems.


scenario....
customer has
several accounts with bank
correspondence to bank's legal department notifying them of customers vulnerability due to mental health
customer formally declared to have mental capacity limitations and bank made aware
court of protection appointed to represent customer to deal with one of the accounts through the courts
another (separate) account issue comes to light whilst customer detained in hospital (bank made aware of customer's hospitalisation)
bank sells on debt to DCA
DCA's weekly letters now threaten SD
non CCA case (OD)


Questions
1. is it worth a complaint to the bank (OC) and/or request they take back the debt?


2. can the bank actually take back a debt?


3. was the banks treatment in selling on the debt discriminatory under DDA 2010 (???)


4. would the banks treatment fall under BOTH bcobs and lending code 9 and thereby quoted as part of the complaint to the bank? and also grounds as to why they should retrieve the debt?


5. would there have been DP breach if the OC had shared the sensitive data with the DCA


6. what if any of the sensitive info has to be declared to the DCA


7. if the non CCA is disputed due to adverse fees taking the OD over the OD limit, would this be grounds for 'account in dispute'?


are they any forum members on her here that have experience of this type of situation? and willing to share their experience/advice and help with the drafting of a letter?

this site is amazing

[nemesis45]

Re: Another Newbie/Banks/DCAs/BCOBS/Lending code and Mental Health

Hi welcome to LB

Point 1.Has the debt been sold or just assigned to a DCA to manage/collect?
2. Depends on 1.
3. I don't think so, delinquent accounts are sold in bulk ( portfolio lots) not individually.
4. Are you think along the lines of " irresponsible" lending?
5. See 3.
6. As above.
7. Overdraft can be considered regulated as rolling credit and you will see many instances here where in the Particulars of Claim on
a County Court Claim an OD described as an " agreement Regulated under CCA 1974".

I have used section 78 CCA '74 to get a copy of the OD agreement/ letter of acceptance of the OD facility.

It would help if you could " flesh out" the details as to what is happening.
As to disputed accounts it really only takes a creditor to decide that either there is no dispute or the dispute is settled and issue a final response.

Fees and Charges: The Information Commissioners Office Technical Guidance on defaults says " that if a default sum is made up Entirely of Charges without which (charges) the account would not have been defaulted no default should be placed".

Hope this helps, if you tell me what you want to say, and what you wish to achieve I can draft a letter for you.

nem

[Brainmelted]

Re: Another Newbie/Banks/DCAs/BCOBS/Lending code and Mental Health

Thank you Nemesis45 for replying.

Point 1.Has the debt been sold or just assigned to a DCA to manage/collect?

1. i think the debt is sold.

2. OK
3. OK, not discriminatory as sold as part of bulk purchase
4. not sure. all i know is that the bank without prompting from me, kept increasing the OD facility year on year, without checking to discuss that i could actually afford it first - different to ‘if i wanted it’ deliberately keeping me in a cycle of debt, and reliant on the OD to survive. just about manageable whilst well, but once i was in decline it all went to pot. the interest/charges and fees that the bank have been put on the account since i have been unwell took the account to over the OD limit. however a lot of the debt is mine


is a default due because of failure to put any monies into the current account (OD) or is the default due because the unauthorised OD amount only has not been cleared? if so, it’s their charges that have put the account over the OD limit.
5. OK.
6. OK.
7. i will look at these posts to get a better understanding.


so CCA request to 1st credit possible
Good as i think it applies (please correct me right if i have misunderstood).


I have used section 78 CCA '74 to get a copy of the OD agreement/ letter of acceptance of the OD facility.
would the request for this go to the bank or DCA?


i didn't realise i had signed an OD agreement. would i have done this when i first signed up for the account? - in the interim my account was upgraded (not at my request) to a packaged account. i did not dispute the upgrade, the original monthly account fee remained the same as the classic account i originally opened, i have been told that packaged accounts were not introduced until 97. my account was pre this date. cannot remember what the original monthly account fees of £8 were for. i didn't even realise back then that the banks did accounts where you didn't have to pay a fee - i was never given the choice to opt out when i signed up with them.


It would help if you could " flesh out" the details as to what is happening.


the DCA are saying that ‘the account has been passed to their legal department’ (called 1st credit legal department) ‘for a case review which may result in a SD being issued, which will formally initiate bankruptcy proceedings’. apparently the 1st credit legal department is a part of 1st credit ltd managing the administration of bankruptcy proceedings. it is signed by their head of legal department.


As to disputed accounts it really only takes a creditor to decide that either there is no dispute or the dispute is settled and issue a final response.


Fees and Charges: The Information Commissioners Office Technical Guidance on defaults says " that if a default sum is made up Entirely of Charges without which (charges) the account would not have been defaulted no default should be placed”.


Hope this helps, if you tell me what you want to say, and what you wish to achieve I can draft a letter for you.


ideally, i would prefer to deal with the bank, i was a loyal and longstanding customer with them. i am worried about the stigma of more people especially DCA’s knowing and judging me and not being so vigilant about data protection and having my condition marked/flagged up on my records everywhere. i do believe that the bank has treated me unfairly, knowing my circumstances i do not understand why the bank could not have allowed me time to get back on my feet to deal with life. they seemed to be in a rush to get rid of my account.


i would like to challenge the OD amount being claimed, and if necessary counter claim for the charges to get the outstanding amount reduced.


if dealing with the DCA, they need to prove ownership of the debt, i am reluctant to admit any liability to them, but if i have to deal with them to alert them to the point that they need to give consideration to the fact that i am a vulnerable person but without going into all the details that the bank has about my mental state.


i guess I'm thinking about 2 letters. one to the bank to let them know how disappointed i am in their treatment of me - can the relevant parts the lending code 9 rules be highlighted to them whether or not they can take the account back. can they be reported to anyone? if they are doing this to me, they must be treating others who are unwell in the same way, and i do not think it is right. letter 2, a ‘prove that i owe money to you’ for the DCA.

do you think you could help with either of these?

i will continue to research on the site

Thank you again

[nemesis45]

Re: Another Newbie/Banks/DCAs/BCOBS/Lending code and Mental Health

OK I'll try to answer your points.

1. who has the debt been sold to?
3. This is in my opinion irresponsible lending.
4. The default would have been placed if the account was not being serviced (no money paid in) and or exceeding the OD limit.

Yes CCA to 1st Credit.
I suspect the account had a nominal OD when you opened it, and the packaged account may have has a larger limit.

The legal department until fairly recently was a " paralegal" and a " principal " solicitor who seemed only sign documents.

Are you saying that your health problem appears on credit reference files?
Change of Ownership of the debt is notified to the debtor by A Notice of Assignment sent by the original creditor and/or the debt purchaser.

Getting bank / OD charges is damn near impossible since the Office of Fair Trading lost the test case against the banks.
If charges are above £12.00 each then there may be a little lee way.

ALL references should be to " The Alleged Debt" and correspondence should contain the phrase " I do not acknowledge any debt to xxxx.

Letter to the bank needs to be a Formal Complaint, which means the bank has 56 days to fully investigate the complaint and respond, then if the response is inadequate you can complain to the regulatory bodies.

You are right the bank must give due consideration to your health both mental and physical in a non discriminate way.

Yes "prove it letter as well.

Hope this helps!

nem.

[leclerc]

Re: Another Newbie/Banks/DCAs/BCOBS/Lending code and Mental Health

Nemesis, the issue of charges on a personal account is plausable under section 9 of the lending code. Your reference to £12.00 is mistaken in reference to personal bank accounts(not credit card accounts).

The other thing I'd be interested in knowing about is whether any of the increase in overdrafts happened AFTER the bank became aware of the Mental Health Issues. My question would be as to how the bank was informed and when?

The other thing that struck me is a separate question and in comes on the back of the issue of mental health. Were any of the accounts packaged accounts, ie bundle of so called benefits which cost you x amount per month. I just re read and thought yep those account fees are worth a reclaim I think

Another question in regards to increases in the overdraft is whether that was done when bank charges had been accruing ie a number of items being bounced.

In terms of financial hardship, was there a change in your circumstances pre formal mental health protocol ie court of protection? If there was then were direct debits for utilities, rent and tv licence being bounced? Was there a loss of income, even if that was due to benefits having been stopped to re assess need(I think you could argue that case as well)?

Some DCA's have to comply with the lending code as an associate member so depending on the DCA then clearly it will depend on whether they do. If the COP are dealing with your financial affairs then realistically the DCA should not be harrassing you but dealing directly with the court appointed person.

[Brainmelted]

Re: Another Newbie/Banks/DCAs/BCOBS/Lending code and Mental Health

Nemesis, and Leclerc
Many thanks to you both for your replies. i will respond here to both

4. The default would have been placed if the account was not being serviced (no money paid in) and or exceeding the OD limit.
this would be both examples in my case
Are you saying that your health problem appears on credit reference files?
i hope not. i don't know, just very fearful that it will happen.
The other thing I'd be interested in knowing about is whether any of the increase in overdrafts happened AFTER the bank became aware of the Mental Health Issues. My question would be as to how the bank was informed and when?
No it did not happen that way
The other thing that struck me is a separate question and in comes on the back of the issue of mental health. Were any of the accounts packaged accounts, ie bundle of so called benefits which cost you x amount per month. I just re read and thought yep those account fees are worth a reclaim I think
yes it started at £8per month then ended up at £12.95pm. i was lucky because when i could work i had insurance as part of the job contract, and used their mobile which was fancier than mine. mine is and always has been the very basic nokia type. phone access only pay as you go. did go on holiday - i went skiing many years ago now and took out insurance for it through the post office i think - but i understand now that insurance was all part of the package - thing is no one at the bank talked me through it. they may have sent me something about it at the time, but i would have treated it like junk mail because it wasn't in response to anything i had asked for or made enquiries about! i would have treated it like they were trying to sell me something.

Another question in regards to increases in the overdraft is whether that was done when bank charges had been accruing ie a number of items being bounced.
yes items were bounced. i believe a letter was sent to them when i first started going downhill to alert them, and items were bounced after that letter, so those charges were put on the account. my downhill was steep, so steep that eventually it couldn't be hidden any longer. they came and forcibly took me from my home and i got detained for a long time. i wasn't able to deal with the bank leading up to and during this period, even now as its only been a few months since they allowed me home. it is a hard road back. after the first time of being detained i swore to myself that i would not allow it to ever happen again, but you just know don't what’s going to happen to you in life. this second detention has shaken me to the bone - it is now impossible for me to promise myself that i will not ever end up in those dreadful places again - do you know some of the other patients wanted to be in there, i witnessed some horrible things.
In terms of financial hardship, was there a change in your circumstances pre formal mental health protocol ie court of protection? If there was then were direct debits for utilities, rent and tv licence being bounced? Was there a loss of income, even if that was due to benefits having been stopped to re assess need(I think you could argue that case as well)? Yes it did happen that way.
Some DCA's have to comply with the lending code as an associate member so depending on the DCA then clearly it will depend on whether they do. If the COP are dealing with your financial affairs then realistically the DCA should not be harrassing you but dealing directly with the court appointed person. i don't know if the lady at the COP is still dealing with me, i didn't want them involved in the first place and tried to fight it, but you cant win when all those agencies have all the power. i didn't want them involved because i felt such shame, i hadn't requested their involvement. in truth at my worst i really didn't care, but I'm coming out the other side again now and the feelings of shame are present again. i want to try and avoid their involvement this time. i want to try and feel like a normal person. i need to see if i can manage this myself, with help from those i chose - am i making any sense? can you understand?


i am grateful for any help you can give and am very sorry for the long reply. My friend helped me a lot by pointing me in your direction, it’s the start i needed.

[Brainmelted]

Re: Another Newbie/Banks/DCAs/BCOBS/Lending code and Mental Health

Hi Nemesis and Leclerc
can you please help with a link to CCA letter and prove i owe the letter, i can't remember in which threads i saw them before.

Thank you

[Brainmelted]

Re: Another Newbie/Banks/DCAs/BCOBS/Lending code and Mental Health

Hi All


i have found CCA request in the library and assume that it the letter referred to.

i am also drafting my letter to the bank. does anyone know if can i quote parts of BCOBS as well as the lending code 9 as part of unfair treatment?

[nemesis45]

Re: Another Newbie/Banks/DCAs/BCOBS/Lending code and Mental Health

Correct.

Yes quote away.

nem

[leclerc]

Re: Another Newbie/Banks/DCAs/BCOBS/Lending code and Mental Health

I would look at reclaiming back the charges for the account on the basis of the above, ie work phone so insurance not needed. Went on holiday and paid for insurance when you had it with the account(you will need paperwork or at least dates as well). Overdraft might have had preferential rates but the fact remains that the overall package of benefits was never explained to you properly so you could take advantage of them and that would suggest that they did not assess your needs or suitability for that account.

[Brainmelted]

Re: Another Newbie/Banks/DCAs/BCOBS/Lending code and Mental Health

Update
CCA posted
Complaint to bank posted
posting is expensive.
account charges (packaged(?) letter still to do
it turns out i also had PPI's - how far back am i allowed to go? will i have to do my own calculations? i couldn't manage that. surely i can trust the bank with this at least.

[leclerc]

Re: Another Newbie/Banks/DCAs/BCOBS/Lending code and Mental Health

You cannot trust the bank with anything but if you know you had PPI with Loans and credit cards then go for it and see what they have to say and then we'll be able to advise.

[Brainmelted]

Re: Another Newbie/Banks/DCAs/BCOBS/Lending code and Mental Health

Hi again Nem and Leclerc

the DCA has responded to my CCA request and returned my £1. they are saying that because the account is an overdraft and as such

'is exempt under part v of the CCA74'

please can someone help with a response, what should i include in my reply?

historically, the account ran over the overdraft limit, i was so tied in that i was living off the overdraft and not my income, the interest was crippling. More recently due to the charges/fees that the bank put on the account, its ended up well over the original limit.

the DCA also said that they would be asking for the statements of the account and would get these to me.

this time their letter is on proper paper and looks official.

Thanks

[Amethyst]

Re: Another Newbie/Banks/DCAs/BCOBS/Lending code and Mental Health

Hi, Yes they are correct that PArt V of the CCA 1974 does not apply to overdrafts. xx Sharon

[Brainmelted]

Re: Another Newbie/Banks/DCAs/BCOBS/Lending code and Mental Health

Hi Amythyst, Nem, and Leclerc

Thanks for your response

in an earlier post of mine Nemesis advised that she had requested and obtained an CCA on an overdraft - because i think the overdraft changed into a loan when the overdraft limit was exceeded(?) without authorisation and without a loan agreement being signed

is this correct or have i got things back to front/wrong end of the stick?

thanks