Hi, just joined

[CleverClogs]

Re: Hi, just joined

Are there any known common faults/flaws in a bank account agreement that I could use to prevent enforcement for overdrafts?

Had you considered pleading insanity?

[gmleo]

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Not until just this second, but if you think it would help?
With hindsight of course I must have been utterly insane to even have contemplated opening an account with that bank.

[FlamingParrot]

Re: Hi, just joined

Thanks for your replies guy & Gals, I'm learning so much.
Noticed I'm a VIP now? Anyone?

That would be because you have donated to the site and/or paid for a subscription. :high5:

I'm unclear as to the rules for Credit Score agencies holding details of a default if the section 78 request has failed.
If I've requested a section 78 and fail to produce anything for months, am I within my rights to request the default be removed from my record until such time they can either produce one, or 6 years has passed, whichever comes first?

Not quite, they can still record a default even if they can't produce a valid agreement. After the McGuffick v RBS judgment, it was decided that reporting to the CRAs does not constitute enforcement, meaning the creditor can do so even when failing to satisfy s.78. :rant: :rant:

The defaults will drop off 6 years after they were recorded anyway, so you haven't got long to wait. :grin: Also some lenders will only search the past 3 years. :thumb:

[gmleo]

Re: Hi, just joined

Perhaps a silly question, but I need to ask anyway.
I'm assuming I can't apply to the court to have the CCJ set aside on the same grounds as I already attempted?
ie I didn't received the notification of the hearing until after the event had occurred.
It failed last time as I didn't have anything else to back up the claim, but now I have.

[gmleo]

Re: Hi, just joined

This is one of the Overdrafts on my default list from Nationwide.

Going through "Debt Letters" that I've sent out, stored on my computer and I came across this one from 2009.
I thought it would be a good one for discussion on Bank Account Overdraft defaults.
All of my overdrafts exceeded the authorized limit, I presume that means they entered the realm of "regulated agreement"?
How does that help me exactly?
Interestingly it was often the banks charges from the previous month that took me over the overdraft limit, for which I was charged again the following month, and again, and on it went until I collapsed with it all. Not £20 charges either, but huge amounts.

20th July 2009
Lending Control
FlexAccount Collections
Nationwide Building Society
Kings Park
Moulton Road
Northampton
NN3 6NW

Reference: ******
Your Reference: X**/D**
CCCS Reference No: ******


Morag McColm


Further to your letter on 1^st June and a telephone conversation with Nationwide I wish to formally appeal against the removal of my overdraft facility.

I recently made an application for the return of some of the illegal charges made by Nationwide under the financial hardship clause and had around £1,000 returned to me.
Two days later you withdrew my Overdraft.

On the phone I was told the reason was to do with a 6 months review and that because I was behind with my Nationwide Credit card payments.
I disagree based on the fact that my nationwide credit card has been behind for over two years.

On the form I had to fill in on order to apply for the financial hardship refund I had to list all my other debts, including Nationwide Credit card.
Until you received that list, I have had no problems at all with Nationwide, not for the past 8 years! I surmise that you had no idea about the Nationwide Credit card being behind, else you would have withdrew my Overdraft facility two years ago on a 6 monthly review.

I think it’s too much of a coincidence that only two days after the financial hardship refund you removed my overdraft facility which is illegal as far as I’m aware.
You we’re supposed to give me notice under the Banking Code, which I never received.
You can’t withdraw an overdraft facility while I am overdrawn, which you did.
Despite my obvious financial hardship at the moment, you still insist on making charges to my account, even though it is deemed illegal by the High Court.

I ask that you re-instate my Overdraft facility effective immediately and refund me all charges since the overdraft was removed.


I look forward to your reply.


Yours faithfully

Mr *** *******

Nationwide £785.97 - Default date 02/03/2011 (noddle)
This debt has a default date of 2011, when clearly it was not, it was this letter that ended the account.

[gmleo]

Re: Hi, just joined

GMLEO - Can you scan the document (without anonymising) and email it to admin@legalbeagles.info I also need to see the 8 pages of further docs please?

Can you also tell me what you recall about opening the MBNA card whose application is exhibited at post 15? Why did you take out the card? How did you come by the application form? A shop/magazine insert/mailshot?? Do you recall any special offers or incentives?

Scanned the 8 pages below.

The reason for getting the card.
I didn't want or need a credit card at the time, I read on Moneysavingexpert in order to improve your credit rating, you actually need to have some credit. From 2004 to 2008 I was preparing to get a mortgage as I was planning (still am) on property developing.
Hence the need to have a clean record, sooner the better.
I had an account with Abbey National, who then changed to Santander. Pretty sure I banked with Abbey National at the time I got the credit card, so more than likely I applied online, though it's possible I picked up an application at the branch. Given the choice I'd have likely chosen online as it would be a faster response.
Pretty sure that had a 0% interest offer at the time.

As suggested by MoneySaviungExpert I was "credit card tarting", shifting the balance when the 0% ran out to a new cards and paying the minimum balance each month until the recession and the banks put a stop to that overnight.

[gmleo]

Re: Hi, just joined

Not quite, they can still record a default even if they can't produce a valid agreement. After the McGuffick v RBS judgment, it was decided that reporting to the CRAs does not constitute enforcement, meaning the creditor can do so even when failing to satisfy s.78. :rant: :rant:

Thanks for this link FB, very long but useful.
I found an interesting part on the page...

Unfair relationships between creditors and debtors

140A (1) The court may make an order under section 140B in connection with a credit agreement if it determines that the relationship between the creditor and the debtor arising out of the agreement (or the agreement taken with any related agreement) is unfair to the debtor because of one or more of the following—

(a) any of the terms of the agreement or of any related agreement;

(b) the way in which the creditor has exercised or enforced any of his rights under the agreement or any related agreement;

(c) any other thing done (or not done) by, or on behalf of, the creditor (either before or after the making of the agreement or any related agreement)…..

Powers of court in relation to unfair relationships

140B (1) An order under this section in connection with a credit agreement may do one or more of the following—

(a) require the creditor, or any associate or former associate of his, to repay (in whole or in part) any sum paid by the debtor or by a surety by virtue of the agreement or any related agreement (whether paid to the creditor, the associate or the former associate or to any other person);

(b) require the creditor, or any associate or former associate of his, to do or not to do (or to cease doing) anything specified in the order in connection with the agreement or any related agreement;

(c) reduce or discharge any sum payable by the debtor or by a surety by virtue of the agreement or any related agreement;

(d) direct the return to a surety of any property provided by him for the purposes of a security;

(e) otherwise set aside (in whole or in part) any duty imposed on the debtor or on a surety by virtue of the agreement or any related agreement;

(f) alter the terms of the agreement or of any related agreement;

(g) direct accounts to be taken, or (in Scotland) an accounting to be made, between any persons.

1) Could I make a legal argument that the Creditor/DCA has acted unfairly citing 140A(a, b or c) in obtaining a CCJ on an unenforceable (and likely improperly executed) 4 year old defaulted debt?
I would like to know if the creditor is accountable for failing any obligations to ensure any CCA is actually enforceable prior to issuing proceedings for judgement?

2) Assuming I had grounds using 140A (a, b or c)
140B (a) Does this mean that I could claim back every payment ever made to the credit card company if I win?

3) Assuming I had grounds using 140A (a, b or c)
140B (e) Does this mean I could request the CCJ be set aside if the creditor is proven to have been unfair to myself using any of the above grounds?

[FlamingParrot]

Re: Hi, just joined

1) Could I make a legal argument that the Creditor/DCA has acted unfairly citing 140A(a, b or c) in obtaining a CCJ on an unenforceable (and likely improperly executed) 4 year old defaulted debt?
I would like to know if the creditor is accountable for failing any obligations to ensure any CCA is actually enforceable prior to issuing proceedings for judgement?

Sadly, the unenforceability argument only applies BEFORE you get a CCJ, precisely because that's what UNENFORCEABLE means: not being able to enforce in court (obtain judgment IS enforcement). But you'd need to argue your point well BEFORE judgment is obtained, not after. It is possible to have a CCJ set aside under certain circumstances (as discussed above), but not merely on the grounds the account would have been UE but you didn't know about it at the time.

There is no obligation on the part of the creditor to ensure the accounts are enforceable or the agreements properly executed before issuing proceedings. When the claimant is a debt purchaser, they would have bought the account as part of a job lot, without any details or documents. It is up to the defendant to challenge the account, which is why you'd normally start by sending a CCA request, then tell the creditor and any DCA that there are failings on the agreement or that no agreement was provided, etc. before they issue court papers. Failing that, you'd have to defend the claim after it's issued.

2) Assuming I had grounds using 140A (a, b or c)
140B (a) Does this mean that I could claim back every payment ever made to the credit card company if I win?

Would that be lovely? :flypig: :flypig: :flypig: Sadly, even when you win a case in court, you can't claim back the payments you already made, all you achieve is not having to pay back the balance that's still outstanding at the time of the claim.

3) Assuming I had grounds using 140A (a, b or c)
140B (e) Does this mean I could request the CCJ be set aside if the creditor is proven to have been unfair to myself using any of the above grounds?

Not really, no. See above.

[FlamingParrot]

Re: Hi, just joined

Scanned the 8 pages below.

The reason for getting the card.
I didn't want or need a credit card at the time, I read on Moneysavingexpert in order to improve your credit rating, you actually need to have some credit. From 2004 to 2008 I was preparing to get a mortgage as I was planning (still am) on property developing.
Hence the need to have a clean record, sooner the better.

Did you send the unedited copies to Celestine as requested? :confused2: What she was asking wasn't really why you decided to get the card, those are personal reasons and not at all relevant to the case. The question was more along the lines of HOW you obtained the card, i.e. did you walk into a branch and filled in a form? Did you get a mailshot at home with an application form? Did someone hand you a little leaflet with an application form? Did you see an ad in a magazine offering a 0% deal? The idea is to establish whether you were presented with those terms at the time of account inception. :thumb:

[gmleo]

Re: Hi, just joined

Did you send the unedited copies to Celestine as requested? :confused2: What she was asking wasn't really why you decided to get the card, those are personal reasons and not at all relevant to the case. The question was more along the lines of HOW you obtained the card, i.e. did you walk into a branch and filled in a form? Did you get a mailshot at home with an application form? Did someone hand you a little leaflet with an application form? Did you see an ad in a magazine offering a 0% deal? The idea is to establish whether you were presented with those terms at the time of account inception. :thumb:

Yes I emailed Celestine the unedited copy of the original as requested.

Other than what I've already written in earlier posts, I honestly can't remember how I came across this card application.
I was reading moneysavingexpert.com a lot at the time, if there was a link from that site to Abbey card then that's one possibility.
I could have picked up an application form whilst I was in the massive queue to get to the counter to pay in funds, which is ringing some distant bells.
Or I could have gone to the Abbey credit card site via my Abbey online banking site.
I just don't know.

Is there another way to find out other than hypnosis?
Would the OC have this information?

[gmleo]

Re: Hi, just joined

Hello everyone.

This site is massive isn't it? I've been here for almost two weeks, my heads is spinning and still there's masses to explore.
I've fired off two letters today contesting the validity of the CCA's they provided.
Egg and Nationwide.
I highlighted flaws spotted on this very thread

A big thanks to all that have replied to my questions.
Also thanks to Curlyben for his almost SB'd thread - 5.5yrs
http://www.legalbeagles.info/forums/...l+with+DCA%27s
I found it very helpful for some of the basic stuff.
Good karma to you all !!

[gmleo]

Re: Hi, just joined

Hi legalbeagles,

I've sent another two letters to Nationwide to remove duplicate defaults from the CRA's.
While looking at my Credit file, again :boom:which doesn't get any better by looking, I found something I'd forgotten about, and thought to bring it to your attention.
In 2007 my alleged debt with Abbey, flexaccount, was £1,586.86 OD and it was all charges, every penny.
I lodged my complaint at the time and just about a month later the whole thing got placed on hold in 2007/2008 by the high court as they dealt with the test case.
Meanwhile, I sent another letter in Aug 2008 saying I'm struggling, financial hardship, on JSA, debts up to my eyeballs, and nothing coming in...
So I claimed the entire debt back under hardship rules at the time.
Back and forth it goes until in March 2009, the Head of Collections Dept at Abbey says, yes, we agree to your hardship and will refund you £1,332.
But we're going to offset it against your debt, goodbye.

The actual debt is £386 remaining and has been since March/April 2009.
I'm putting a letter together as I type this, firstly highlighting the bullying tactics by Equidebt, enclosing some of there letters as proof of unfair treatment.
Also mentioning that Under First Right of Appropriation they had/have no rights to take my money from me without my knowledge or approval.

I'm requesting T&C's from that time, along with any bank agreements with my signature and theirs, and dates.

Worth noting, this debt goes SB in 5 months anyway, nothing to lose.

I'm demanding they refund the £1,332 with interest at 8% from date of first charge.
I anticipate they will reply that the test cast was overturned by the court of appeal, that the illegal charge are in fact legal and so I'm not entitled to them any longer.
I would counter that with this is a refund of charges (illegal or not) based upon financial hardship, then and now, which was agreed by Abbey.

Further, how can a charge be first legal, then illegal, and then legal again, and still be deemed legal if I've already had £1,332 returned to me and removed from the account, if not under the hardship rules?
If that makes any sense?

So, I know it's been a long time, I've not had contact with Abbey or Equidebt for years but I want to give them a taste of their own medicine.
How many times have I read on this site that a debt comes back years later out of the blue?
Oh Hello, you forgotten all about this little debt from 4 years ago and thought you got away with it? Boom!

Need some advice on the above...
What if anything has changed when it comes to hardship rules?
Is this a breach of Appropriation rule? Am I out of time to counter it, or does the 6 year SB rule work for me here?

One last question,
The address at the time was
Complaints
Abbey
PO Box 5129
Milton Keynes
MK9 2YN

Where do I send this latest letter as Abbey are no more?

Here's a copy of the letter I will send. Any advice, amendments, additions, ideas?

My address goes here.

Your Ref: CMS/******
Account No: *********


DEBT IN DISPUTE
I do not acknowledge any debt with your company



Dear Ana Patricia Botin,

I wrote to Abbey numerous times in 2008 in protest at Abbeys' illegal bank account charges, and regarding my financial hardship at that time.
My letters stated it was in fact Abbey's illegal bank charges constituting the entirety of an alleged debt for £1,518.86

After numerous letters I was finally was awarded £1,332.00 refund on those illegal charges.
This was acknowledged in a letter from Richard Harris, Head of Complaints at Abbey on 26 March 2009.
I have a copy of that letter and happy to forward it to you.

The letter states that my refund has been "offset" against an alleged debt with your collections and recoveries department.

I disputed this arrangement in 2009 and I am still disputing it today in 2013.
Under First Right of Appropriation, Abbey had no rights under law to withhold my money to which I was/am entitled.
I see no mention of this in the Terms & Conditions that were given to me at the time.

In fact I would like you to provide me with a copy of the Terms and Conditions relating to the FlexAccount from 08 May 1999.
I would also request you send me any banking agreement relating to me or this account with dates, Interest Rates and signatures, both mine and Abbey's.

Further, I have a multitude of intimidating, demanding and threatening letters from both Debt Management Recovery Limited (part of Abbey National Plc) and EquiDebt Limited, a debt collection agencies employed by Abbey to recoup the alleged debt from 2008.
I've enclosed some random samples of some of these letters listed below and I will submit the actual letters of proof of unfair treatment.

• 24/04/2008 EquiDebt letter states they are preparing to issue court proceedings.
• 26/04/2008 I wrote to EquiDebt contesting any debt. I informed them they were in Breach of the High Court ruling by pursuing the debt.
• 01/05/2008 EquiDebt confirmed all collection action has ceased.
• 09/06/2008 EquiDebt threatens Door Step collection.

Abbey instructed this course of action knowing full well my financial hardship issues and unemployment at the time because I had already informed them. I consider this an act of bullying and intimidation, and as such constituted to a total breakdown of trust between myself and your financial company.

Further, the alleged debt remaining should now only be £386 as Abbey have without my consent or knowledge stolen £1,332 from me. Abbey used my funds to offset against a debt I disputed then and now and I did/do not acknowledge.
Yet according to my credit reference search today, both Equifax and Callcredit are still showing a default of £1,518.
Can you please explain this to me?

As you may note this alleged debt will be statue barred within months.

My recent circumstances again see me struggling financially and again qualify for financial hardship.
I request that two things happen.

1. With immediate effect I wish the disputed unenforceable default be removed from all CRA's from its incorrect amount of £1,518.86 to its actual default of £0.00
   I base this argument on the original grounds of financial hardship which I have already qualified for a refund. I disagree the remaining £386 should ever have existed, it should have been a full refund of the entire £1,518.86
2. Secondly I wish to have the agreed refund of £1,332 returned to me within 7 days of this letter, plus recurring daily interest at 8% dated from the first ever charge.

Failure to comply with either of these requests will result in letters of complaint to both the OFT & FOS.

I will send a copy of this email/letter along with copies of all the above mentioned letters to you by recorded delivery tomorrow morning 3rd September 2013.

I look forward to your reply as soon as possible.


Yours faithfully

gmleo - Beagle puppy

Thanks in advance

[gmleo]

Re: Hi, just joined

anyone?

[labman]

Re: Hi, just joined

Just so you know at least one person has read it. I can't answer it for you though, sorry. Personally, after a lengthy time I'd let sleeping dogs lie and hope for SB, but I can understand your wish to get one over them.

[Celestine]

Re: Hi, just joined

First Right of Appropriation is a dead duck sadly. Also any claim based on bank charges in any way shape or form is not going to scare a bank in the slightest, so I wouldn't expect results in that area either I'm afraid. Hardship is rarely respected either. :tinysmile_cry_t:

Also, BE CAREFUL. If you ACKNOWLEDGE the debt, you risk RESETTING the Limitation Act 'clock'.

Personally I'd leave well alone.......