Overdrafts and CCA 74?

[ncf355]

Hi all,

We have had a letter from a DCA stating they intend to take court proceedings against us for an overdraft debt.

This letter appears a lot more specific than the usual threat-o-grams.

My questions is, if it were to come to them issuing proceedings, which parts of the CCA 74' will apply to this attempt at enforcements as I appreciate that overdrafts are not covered by quite the same issues as credit cards etc

Any advice greatly appreciated!

NcF

[ncf355]

Re: Overdrafts and CCA 74?

Sorry,

Just seen details here by FP

I take it that as the oD was over the allowed limit that "normal rules come into place" via the the EC directive - so would this mean they would need to issue a valid S78 notice prior to issuing proceedings?

[jon1965]

Re: Overdrafts and CCA 74?

I am no expert and can not guarentee this will work but it did shut up Halifax for me

Dear Sirs,
Ref: XXXXXXXX
Under the provisions of The Consumer Credit (EU Directive) Regulations 2010 and also c.39 (s.74 (A&B) (VA)) CCA(1974) I wish to formally request a copy of the original overdraft agreement and relevant paperwork that you should be sending me annually, for the above numbered bank account with [enter bank name here].
As I held what can only be regarded as an 'Agreed Overdraft', which has now reverted to an 'Unauthorised Overdraft' then the lending becomes regulated in line with c.39 Part VA (s.74) (s.1(b)) CCA1974 meaning the normal rules and CCA(1974) protection applies to this account.
You should be sending an annual reminder to me regards the overdraft, as well as copies of the original agreement made and an annual renewal form that contains the relevant prescribed terms that are clearly outlined in s.74(A)2(a,b,c,d,e). I highlight this provision for your perusal;
s.74A(2) The current account agreement must include the following information at the time it is made:
(a) the rate of interest charged on the amount by which an account-holder overdraws on the current account or exceeds the pre-arranged overdraft limit,
(b) any conditions applicable to that rate,
(c) any reference rate on which that rate is based,
(d) information on any changes to the rate of interest (including the periods that the rate applies and any conditions or procedure applicable to changing that rate), and
(e) any other charges payable by the debtor under the agreement (and the conditions under which those charges may be varied).
You should also be paying attention to s.74(B)(2) which reads, I quote;
s.74B(2) The matters referred to in subsection (1) are:
(a) the fact that the current account is overdrawn or the overdraft limit has been exceeded,
(b) the amount of that overdraft or excess,
(c) the rate of interest charged on it, and
(d) any other charges payable by the debtor in relation to it (including any penalties and any interest on those charges).
Therefore in line with the above, please could you send me what you should have been doing annually, to allow me to take whatever action I deem appropriate.
I trust that I have set out the position clearly and I await your response with the requested information.
Yours faithfully,

Sign using a computer font

[ncf355]

Re: Overdrafts and CCA 74?

Cheers for that

[ncf355]

Re: Overdrafts and CCA 74?

My mistake in the above post, I meant Section 87 - Default Notices?

So as the alleged OD comes under EC Directives (c.39 Part VA (s.74) (s.1(b)) CCA1974) due to it exceeding the agreed amount, do they need to provide a valid S87 prior to commencing action?

[jon1965]

Re: Overdrafts and CCA 74?

With both of my ODs I was sent a DN / They were with Halifax and Santander

[ncf355]

Re: Overdrafts and CCA 74?

Cheers Jon

[labman]

Re: Overdrafts and CCA 74?

You might want to read this post as well - the case history attached is interesting.

http://www.legalbeagles.info/forums/...439#post376439

:beagle:

[ncf355]

Re: Overdrafts and CCA 74?

Hi Lab,

The Coutts case left me a little confused (easily done!)

Am I right in thinking the consumer benefit to come from that is the reiteration that the details MUST be served to the debtor/account holder within 7 days of the date of the overdraft?

And if they dont' is it the case they cant take enforcement action without being able to prove the data was shown?

[ncf355]

Re: Overdrafts and CCA 74?

And am I also correct that (even if we set aside the fact that Part V exemption appears to no longer apply to the alleged agreement!) as Part V in no way refers to S87, then they have no way out of that element and therefore a S87 default notice MUST be served prior to calling in the OD amount in full due to it exceeding the agreed OD limit?

[Guest]

Re: Overdrafts and CCA 74?

This is the way I understand the situation regarding overdrafts.

The EU directive identities different types of overdraft.
One is the pre-arranged overdraft which must have an agreement under section 61(B).
The second is the tacit or un-arranged overdraft, where the account entitles the account to be overdrawn but there is no specific agreement, on these a notice under section 74(a) must be sent when the account utilities this feature.
The third is drawing without consent, on theses a notice must be sent under section 74(B) stating the costs or sanctions of the drawings.

The first being a separate agreement would require a default notice in order to terminate in the same way as any other running credit account.
The second two are subject to the terms of the current account, and can be withdrawn under a term of that agreement, the only requirement the CCA puts on this is that a notice must be issued under section 76.

[labman]

Re: Overdrafts and CCA 74?

I'd concur with that! The agreed overdraft also holds good if the authorised overdraft is exceeded though, I believe.

[Lynnyloo]

Re: Overdrafts and CCA 74?

Would this apply to an overdraft on account that was opened in 2000, and has been in default since 2009? It's just I noticed in the letter that the regulations came into place in 2010.

Thanks