Overdraft + strange letter (Birdie v Nationwide)

[Birdie]

Hello

Please could someone give me some advice please?

My husband and I had a joint account with Nationwide BS with overdraft of £1050.

I took advice from CCCS and wrote to them advising of our financial situation and enclosed budget and other creditors.

They wrote back (May 2008 and I have procrastinated on the letter) thanking me for my letter.

"In order to protect you and your account details with Nationwide, we have an obligation under Data Protection to check your signature carefully. When we opened your letter today and checked it against our central system, we could not find a sample of your signature on our records.

Also please note that as this account is a joint account, we require the signatures of both account holders before we can deal with your enquiry ecen if only one party is the client of the CCCS" (which we are not - we just took advice at the time.

They then go on to advise that they need to capture our signature and ask her to take the letter along with acceptable ID to nearest branch.

On reading through information on this site, I believe we would be rather foolish to send our signatures off - if this is the case, how do we go about sorting it all out. They are still putting interest on the overdraft (we have moved banks now) and I would like to challenge their charges, but also we need to begin paying back some of their monies. Any thoughts please?

Kind regards.

HLG43

[Jester]

Re: Overdraft + strange letter

If they don't have your signature, they how do they think they are going to enforce this supposed debt ?

Surely if they don't have your signature then there is no legally binding document confirming it to be your debt ?

Or am I missing something here ?

[Curlyben]

Re: Overdraft + strange letter

Admittedly as a DPA issue they are correct, but it does seem rather odd, after all you are advising them of you situation nothing more.

Have you been dealing with you local branch and do you have a contact there.
This might be a better way to proceed.

[Birdie]

Re: Overdraft + strange letter

The local branch are not really interested.

Nationwide have now sent me another letter:

7th August 2008.

"Your Flex Account is overdrawn by £1067.05 without our agreement (what agreement as they don't have our signatures on file according to their letter of 23rd May 2008).

It is important that you now pay enough money into your account immediately to bring your balance under the agreed limit of £1050. You'll also need to pay any charges that are due. You can find details of these charges on your statement.

Please call us on 0845 331 2610 to make a payment by card. If you can't pay, please call us to talk through your options.

If you bring your account under the agreed limit within five days from the date of this letter, there's no need to contact us.

If you don't pay or contact us, we will take further action.

If you're having financial difficulties, you can find help on our website".

Any ideas on how to play this one? My husband thinks I should just pay the money to get the overdraft down to the agreed limit, however, there is still the issue that we are struggling financially, have already sent them a please stop interest letter (May 2008 - see above). They've ignored the letter by sending the we don't have your signatures on file letter. Sorry this is all over the place! Any help very much appreciated.

HLG43

[Amethyst]

Re: Overdraft + strange letter

Well are there charges on the account?

also are you, from what you have said it sounds as though you are, in financial hardship, in which case they should consider you to have charges and interest dropped and possibly change account to a basic one, to comply with the banking code and waiver terms.

[Birdie]

Re: Overdraft + strange letter

Well are there charges on the account?

also are you, from what you have said it sounds as though you are, in financial hardship, in which case they should consider you to have charges and interest dropped and possibly change account to a basic one, to comply with the banking code and waiver terms.

Thanks for your quick reply. We are currently repaying arrears to our mortgage company and electric company. Currently all other household bills are pretty much up to date. We have a lot of debt with credit cards (I have yet to post my budget up to LB). We took advice initially from CCCS and send off a letter to nationwide enclosing our budget at the time an offering a £1 a month until further notice in order for us to get our finances in better order, so yes I consider that we are in financial hardship.

There are lots of charges on the account, bounced direct debits etc. We actually do not pay any money into that account. We have opened a basic account with Natwest which we now use.

[Amethyst]

Re: Overdraft + strange letter

Lovely jubbly in that case then

Get a prelim letter off detailing your hardship circumstances - have a look at a couple of hardship threads and the template prelim letter in the library - and add to it the bit about the account being in dispute. Post it up on here for fine tuning befor eyou send if you like

Do you have statements ?

Also a copy of the original letter you sent to Nationwide offering the £1 would be ace.

You sound like you are in a good position.

[Birdie]

Re: Overdraft + strange letter

Quick question re statements before I calculate charges etc - how many years can I go back?

[Amethyst]

Re: Overdraft + strange letter

as many as you have statements for - or six - depending how argumentative you feel.

[Birdie]

Re: Overdraft + strange letter

Thanks.

Oh I'm feeling very argumentative! Will go for the kill - think I probably have more than 10 years! Nothing ventured, nothing gained

Think I'll do this with Smile next. I've so far disputed our overdraft with them and cca'd them....

Thanks.

HLG43

[Birdie]

Re: Overdraft + strange letter

Hello Amethyst,

Please would you take a look at the draft letter to Nationwide? I've realised that we've not got all the statements, so have put in a request for that. Regarding the original letter that I sent to them, I have unfortunately not kept a copy, however, CCCS are sending me another copy so that I have the exact wording - I do have a copy of the budget, other creditors and Recorded delivery notification.

See draft letter:

"ACCOUNT NUMBER: xxxxxx

Refund of Insufficient Funds Charges Request
Notification of Disputing Debt
CCA Request

We request a refund of the various "Insufficient Funds" charges which you have taken from our account over the last 12 years.

Further to recent publicity covering the High Court Test Case between the Office of Fair Trading and the Banks, we are now aware that these charges may be considered unlawful at Common Law and Statute.

The High Court has decided that recent charges applied to my account can be assessed for fairness under the Unfair Terms in Consumer Contracts Regulations 1999.

We believe these charges to be unfair as the terms which apply them fall under the remit of the Unfair Terms in Consumer Contracts Regulations 1999, Schedule 2 - paragraph (e) which states that contract terms which have the object or effect of ''(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation'' may be regarded as unfair.

Additionally, we believe that older charges applied to our account are unlawful penalty charges and as such are irrecoverable at common law. Precedents for this include, but are not limited to, Dunlop Pneumatic v New Garage [1915] AC 79, Murray v. Leisure play [2005] EWCA Civ 963 and CMC Group Plc And Others V Zhang [2006] EWCA Civ 408.

If you believe that these charges are not unlawful penalties then we would be grateful if you would demonstrate this by providing us with a full breakdown of the costs you have incurred as a result of our breaches of contract, in order to satisfy us that your charges really do reflect your actual costs.

We note the FSA’s definition of Financial Hardship as detailed in the updated Waiver and believe that we meet these criteria and wish you to deal with our refund request accordingly.

You will be aware that under the Banking Code, to which you subscribe, you may not default our account or take further enforcement action whilst the debt is in dispute. As we now consider the account to be in dispute it is in both our interests to come to a swift resolution.

In addition, with reference to the above account, we request that you send us a true copy of this credit agreement relating to the overdraft.

This is our right under the legislation contained within section 77 (1) and section 78 (1) of the Consumer Credit Act 1974, and we are entitled to receive a copy of our credit agreement on request.

Your obligation also extends to providing us with a full statement of account for the complete term of the account. We enclose a £1 postal order, which represents payment of the statutory fee payable under the Consumer Credit Act. We understand that a copy of our overdraft credit agreement should be supplied within 12 working days from the date of this letter.

We understand that under the Consumer Credit Act, creditors are unable to enforce an agreement if they fail to comply with a request for a copy of the agreement under these sections of the Act.

We would also ask that you supply a signed true copy of the executed deed of assignment for the above referenced agreement. This is an obligation, whether you are the original creditor or not, under section 189 of the Consumer Credit Act 1974.

For the sake of clarity, may we also draw your attention to the following:
Consumer Credit Act 1974 s.175. Where under this Act a person is deemed to receive a notice or payment as agent of the creditor or owner under the regulated agreement, he shall be deemed to be under a contractual duty to the creditor or owner to transmit the notice, or remit the payment, to him forthwith.

Non-compliance with our request is a criminal offence under the above Act and will result in a report being submitted to the relevant statutory authorities.

In summary, we DO NOT ACKNOWLEDGE THIS DEBT AND THEREFORE REQUIRE YOU TO SUBSTANTIATE THIS BY PROVIDING THE FOLLOWING DOCUMENTATION BEFORE WE CORRESPOND FURTHER :

1. True copy of original signed executed overdraft credit agreement
2. FULL Statement of account for the term of the account.
3. Copy of the executed deed of assignment from Nationwide.
4. A fair processing notice.

As you are aware, a credit agreement that is not properly documented and signed by the customer is totally unenforceable under the CCA and therefore is a complete defence to any court claim that is issued.

Take note at this stage, that any legal action you may contemplate will be both vigorously defended and contested.

Further to the above, please ensure that any contact by yourselves is made in writing only to the above address. Telephone calls and personal visits will not be accepted and viewed as harassment.

Once we have received copies of statements from you, we will calculate the amount of unlawful charges and interest on the unlawful charges and will send a schedule to you which we will require refunding, you will then have 14 days to reply to us, accepting unconditionally our request in principle, letting us know a date by which we will receive our refund.

If you fail to respond, or fail to respond positively within this time period, we shall send you a letter before action giving you a further 14 days.

At the expiry of the second deadline, we shall commence a County Court claim against you without further notice and our claim at that time will include Court costs and interest.

Yours faithfully



Many thanks, HLG43

[Birdie]

Re: Overdraft + strange letter

Hello Amethyst,

Please would you take a look at the draft letter to Nationwide? I've realised that we've not got all the statements, so have put in a request for that. Regarding the original letter that I sent to them, I have unfortunately not kept a copy, however, CCCS are sending me another copy so that I have the exact wording - I do have a copy of the budget, other creditors and Recorded delivery notification.

See draft letter:

"ACCOUNT NUMBER: xxxxxx

Refund of Insufficient Funds Charges Request
Notification of Disputing Debt
CCA Request

We request a refund of the various "Insufficient Funds" charges which you have taken from our account over the last 12 years.

Further to recent publicity covering the High Court Test Case between the Office of Fair Trading and the Banks, we are now aware that these charges may be considered unlawful at Common Law and Statute.

The High Court has decided that recent charges applied to my account can be assessed for fairness under the Unfair Terms in Consumer Contracts Regulations 1999.

We believe these charges to be unfair as the terms which apply them fall under the remit of the Unfair Terms in Consumer Contracts Regulations 1999, Schedule 2 - paragraph (e) which states that contract terms which have the object or effect of ''(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation'' may be regarded as unfair.

Additionally, we believe that older charges applied to our account are unlawful penalty charges and as such are irrecoverable at common law. Precedents for this include, but are not limited to, Dunlop Pneumatic v New Garage [1915] AC 79, Murray v. Leisure play [2005] EWCA Civ 963 and CMC Group Plc And Others V Zhang [2006] EWCA Civ 408.

If you believe that these charges are not unlawful penalties then we would be grateful if you would demonstrate this by providing us with a full breakdown of the costs you have incurred as a result of our breaches of contract, in order to satisfy us that your charges really do reflect your actual costs.

We note the FSA’s definition of Financial Hardship as detailed in the updated Waiver and believe that we meet these criteria and wish you to deal with our refund request accordingly.

You will be aware that under the Banking Code, to which you subscribe, you may not default our account or take further enforcement action whilst the debt is in dispute. As we now consider the account to be in dispute it is in both our interests to come to a swift resolution.

In addition, with reference to the above account, we request that you send us a true copy of this credit agreement relating to the overdraft.

This is our right under the legislation contained within section 77 (1) and section 78 (1) of the Consumer Credit Act 1974, and we are entitled to receive a copy of our credit agreement on request.

Your obligation also extends to providing us with a full statement of account for the complete term of the account. We enclose a £1 postal order, which represents payment of the statutory fee payable under the Consumer Credit Act. We understand that a copy of our overdraft credit agreement should be supplied within 12 working days from the date of this letter.

We understand that under the Consumer Credit Act, creditors are unable to enforce an agreement if they fail to comply with a request for a copy of the agreement under these sections of the Act.

We would also ask that you supply a signed true copy of the executed deed of assignment for the above referenced agreement. This is an obligation, whether you are the original creditor or not, under section 189 of the Consumer Credit Act 1974.

For the sake of clarity, may we also draw your attention to the following:
Consumer Credit Act 1974 s.175. Where under this Act a person is deemed to receive a notice or payment as agent of the creditor or owner under the regulated agreement, he shall be deemed to be under a contractual duty to the creditor or owner to transmit the notice, or remit the payment, to him forthwith.

Non-compliance with our request is a criminal offence under the above Act and will result in a report being submitted to the relevant statutory authorities.

In summary, we DO NOT ACKNOWLEDGE THIS DEBT AND THEREFORE REQUIRE YOU TO SUBSTANTIATE THIS BY PROVIDING THE FOLLOWING DOCUMENTATION BEFORE WE CORRESPOND FURTHER :

1. True copy of original signed executed overdraft credit agreement
2. FULL Statement of account for the term of the account.
3. Copy of the executed deed of assignment from Nationwide.
4. A fair processing notice.

As you are aware, a credit agreement that is not properly documented and signed by the customer is totally unenforceable under the CCA and therefore is a complete defence to any court claim that is issued.

Take note at this stage, that any legal action you may contemplate will be both vigorously defended and contested.

Further to the above, please ensure that any contact by yourselves is made in writing only to the above address. Telephone calls and personal visits will not be accepted and viewed as harassment.

Once we have received copies of statements from you, we will calculate the amount of unlawful charges and interest on the unlawful charges and will send a schedule to you which we will require refunding, you will then have 14 days to reply to us, accepting unconditionally our request in principle, letting us know a date by which we will receive our refund.

If you fail to respond, or fail to respond positively within this time period, we shall send you a letter before action giving you a further 14 days.

At the expiry of the second deadline, we shall commence a County Court claim against you without further notice and our claim at that time will include Court costs and interest.

Yours faithfully



Many thanks, HLG43

Hello

Have had a "chat" with Celteco - I've been trying to be a bit too clever with the above letter, so will be sending 4 different letters outlining the hardship claim (although not having all my statements, will have to CCA them for those and then follow up the exact hardship claim at a later date), then a separate dispute letter, harassment letter, Terms and Conditions letter etc.

:tinysmile_aha_t:

[Amethyst]

Re: Overdraft + strange letter

Sorry hun I have just been so tied up today. You all sorted now ? - well talking to Cet you should be lol. I do agree with him, but i am a bit lost on the CCA application part in your letter - overdrafts arent covered under the cca 1974.

[Birdie]

Re: Overdraft + strange letter

Hi Amethyst,

No worries - we all lead busy lives! I just really appreciate your help. I'm pretty sorted for now, although oh poo - I sent a CCA letter off to Smile re our overdraft - no doubt they'll send a lovely reply. Just my sheer ignorance on CCAs

I cannot find copies of all of our statements - how do I request these please?

PS - as I am going the hardship route, should this thread be moved into the hardship area of LB?

Kind regards.

HLg43

[tomterm8]

Re: Overdraft + strange letter

Assuming that you have no other credit agreements (i.e. credit cards, loans etc) with them, specifically for an overdraft agreement there is no requirement for them to have a signed credit agreement and so there is no problem signing a letter to them.