default on overdraft with no facility letter and enforcement pre 2006.

[annemarie]

hi all..had a current account with the bank in 2001, i believe it came with a £400 od facility, but not sure if that graduated from usage or not as dont remember signing for it. In 2006 it went to £410 pounds od, which i corrected next day and i was then charged 25 quid as an unauthorised charge.

i immediately contested this charge as i felt it was excessive and asked for it to be looked at, they refused so i made it a formal complaint and stopped using the account.

they continued to apply charges and i applied for a charges refund ,when it reached £1700 pounds they offered me
800 pounds refund as goodwill, i refused as my charges had amounted to £1277, at this point, they then offered again with a 700 pounds refund..yes 700 the second time even though it had occurred more charges.

i refused to pay, so after 18 months of the account being dormant they defaulted me despite my written appeals.
the account was £1777 od at this point and had not been used since it was £410 od and i was constantly appealing these charges.

i then had debt collectors for the next 12 months who i disputed with all along and the bank then said they would not collect the amount outstanding. and marked the default satisfied.

i have recently requsted a copy of my facility letter and the bank have told me that they only kept this for 6 years and was destroyed after that point.

can the bank still continue to mark this as a default with the credit ref agencies even though they have admitted they no longer hold a copy of a facility letter, which would have held the terms of the od?

[Celestine]

Re: default on overdraft with no facility letter and enforcement pre 2006.

What year did the account get defaulted?

A full time line would be helpful.

[annemarie]

Re: default on overdraft with no facility letter and enforcement pre 2006.

hi celene..
account opened in 2001
went over 400 o/d limit by 10 in march 2006
account not used again after correcting to o/d limit but was then charged a penalty fee which started the ball rolling 12th march 2006
wrote 35 complaint letters between now and debt being written off
default dec 2007
debt collectors for next 12 months, each one contested
debt written off jan 2009 and marked as satisfied with cras.

hope that helps thankyou
anne marie

[labman]

Re: default on overdraft with no facility letter and enforcement pre 2006.

Can the bank still continue to mark this as a default with the credit ref agencies even though they have admitted they no longer hold a copy of a facility letter, which would have held the terms of the od?

Yes! The default will fall off your CRF in December 2013.

Just to check, you say the debt has been written off - so there are no problems with DCA's or anything now?

It might be worth you emailing the CEO of Nat West explaining the story, and the fact that the account was effectively defaulted for a £10.00 which lasted one day. Ask him if he will get involved to get the default removed from your CRF - it might work. Otherwise, you need to complain to the ICO if you feel it is unfair.

Stephen.Hester@rbs.co.uk

[annemarie]

Re: default on overdraft with no facility letter and enforcement pre 2006.

hi ian thanks for the info..i am aware the default will fall off naturally in dec 2013, what i am trying to do is get the default removed on other grounds.

i have been in correspondence with the bank and at the moment they have amended the entry as it was showing as unsatisfied, which they have apologised for and offered me 50 pounds as a goodwill gesture for the inaccuracies recorded.

They have also informed me that any account opening agreements and facility letters for the overdraft have been destroyed due to the passage of time.

What i am trying to ascertain is if the bank have a legal right to share my information with the credit agencies in the full knowledge that they have destroyed my agreement and do not hold a true copy of a facility letter as required by a court to pursue this debt through a court of law.?

Also as they have admitted they have destroyed these documents, how can an alleged debt be questioned in a court. as they hold no proof of any agreement made with them?
And finally as they have destroyed my account opening details, where is the permission to share my data with the cras?

[Celestine]

Re: default on overdraft with no facility letter and enforcement pre 2006.

I think you raise some really interesting points here AnneMarie.

It is disgusting that a £10 incursion into unauthorised overdraft should cause such a debt to accrue.......and NatWest KNOW it.

I think DPA s.13 could be useful here.

Also, well done for persisting and writing so many complaints.

[annemarie]

Re: default on overdraft with no facility letter and enforcement pre 2006.

thanks celestine, i will give dpa section 13 a read over and see what i can make of it. :tinysmile_grin_t:

i could do with someone in the know who has been down this track with the bank before to give me some pointers re the banks position on data sharing when not holding original signed documentation.

i was also wondering if the ico would have an opinion on this?

[Celestine]

Re: default on overdraft with no facility letter and enforcement pre 2006.

Well according to McGuffick v RBS [2009], registering a default does not constitute 'enforcement' of a debt. So a debt may very well be unenforceable but the lender can still default you for it. Not our favourite Judgment is McGuffick......it's days are numbered.....




Technically, overdrafts are not covered by the Consumer Credit Act....so perhaps McGuffick is not relevant, however I suspect the broad principles of McGuffick could well 'read across'.

[annemarie]

Re: default on overdraft with no facility letter and enforcement pre 2006.

hi celestine, best steer clear of mcguffick then!!!

what about their permissions to share data with out holding the original signed documentation? surely this is a pure breech of the dpa?

how can any of this be contested in a court if they hold no proper documentation?

as there is no debt outstanding, and the default is marked as satisfied, the dpa approach seems the only route open to me, other than the ombudsman and ico?

[annemarie]

Re: default on overdraft with no facility letter and enforcement pre 2006.

and this bit confuses me totally,
"Technically, overdrafts are not covered by the Consumer Credit Act"
i keep trying to get my head around this, i read some say it is, some say not..:beagle:

[labman]

Re: default on overdraft with no facility letter and enforcement pre 2006.

and this bit confuses me totally,
"Technically, overdrafts are not covered by the Consumer Credit Act"
i keep trying to get my head around this, i read some say it is, some say not..:beagle:

They are covered:

http://www.legislation.gov.uk/ukpga/1974/39/part/VA

[annemarie]

Re: default on overdraft with no facility letter and enforcement pre 2006.

ok thats what my belief was after reading some docs from the fos. i think the technical part is where the banks try and squirm out of there duties..lol

[annemarie]

Re: default on overdraft with no facility letter and enforcement pre 2006.

ok..the banks have given there final response and say that it took two years of non activity to default the account as i kept querying the charges..they say the default stands from that date, go to the ombudsman if not happy.

surely 400 o/d finishing at mearly 1800 quid on a challenged dormant account is not accurate reporting? especially two years after being dormant and challenged?

they offered 800 in charges back but never appied it to the account and then writ the debt off in 2009 due to the way they had tried to enforce it including three debt collectors at once and many other wrong doings, so debt marked as satisfied.

should i go to the ico with this one?