Section 78 (1) exemption under part 5

misstasty

Hi Guys,
Sorry for the legal jargon above, but I figured those who have had this response will know exactly what I am on about.
Ok So I asked for a copy of the CCA and got the reply from (DCA) that under section 5 an overdraft falls into exemption.

Should I now ask for a SAR? They are now telling me that because they have now provided me with some information that the debt is an overdraft and therefore they don't need to send me any CCA they are saying that they have satisfied their obligations and now they can enforce the debt.

However what they did was NOT respnd to my letter within the 12+2 days, so then I sent the reminder template saying that the account was now in dispute. They replied saying that they had respnded to my letter and sent it to my PREVIOUS address!
It is in this letter that they are quoting setion 78 part 5 exemptions.


They sent me a made up copy of the letter they apparently sent to my previous address with a response date of 24th february (funny how my origanal letter requesting my CCA was dated 3rd feb)


So my questions are: do I send an SAR? Are they allowed to send correspondence to previous addresses knowing that I no longer live there ( I obviously put my new address on the original letter)

I'm confused.....can they enforce the debt now that they have responded???? Can they update the default? I never recieved a defauly notice ect.

Many many thanks

fermi

Overdrafts do not have a CCA that you can request, because of the exemption that they mention.

So there is nothing stopping them enforcing it.

Why do you want to send a SAR?

For account payments? The default notice?

Culex

Another thing - how old is the alleged debt?

Culex

fermi wrote: »

They don't.

Section 74 exempts an overdraft from needing an executed agreement.

Section 78 specifies a duty to supply the executed agreement if any.

There isn't any, so the duty to supply a copy of the executed agreement does not apply.

I do believe that you (and they) have missed the point. There may not be an executed agreement under Part V, but that's not all section 78 requires:

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [£1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a) the state of the account, and
(b) the amount, if any currently payable under the agreement by the debtor to the creditor, and
(c) the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

(2) If the creditor possesses insufficient information to enable him to ascertain the amounts and dates mentioned in subsection (1)(c), he shall be taken to comply with that paragraph if his statement under subsection (1) gives the basis on which, under the regulated agreement, they would fall to be ascertained.
:
:
(6) If the creditor under an agreement fails to comply with subsection (1)—

(a)he is not entitled, while the default continues, to enforce the agreement;

So, apart from the executed agreement (which does not not exist and which is therefore exempted under section 74) has the creditor complied with any of their other obligations under section 78?

What have they done with the £1 postal order?

fermi

We don't know what was supplied with that letter, so it's not possible to judge?

It's very simple for a DCA to comply with the other provisions.

A letter saying that the account is defaulted and payable immediately along with the balance owed is normally sufficient.

(In fact, a lot of DCA "demand letters" arguably supply the required info)

Note that is says "state" of the account. Not statements or a breakdown of payments.

misstasty

Thanks for the responses all!
Erm the debt is from 2006.

All the exemptions and sectiions has my mind spinning lol, However I am sure that they, by sending something to my previous address knowing full well that I no longer live there cannot be right surely???? Especially as they only responded (late) when I sent the reminder template,....and then they are quoting section 78 rather than section 74. They have supplied no other information other than to say that there is nothing to supply, which is why I thought about asking them for an SAR.
I don't know whether I'm clutching at straws or it is worth fighting, at least with an SAR they need to supply statements and then I can see how much is made up of bank charges ect, then maybe offer a full and final.....but I'm damned if I am paying all of what they are asking because its twice as much as the overdraft was for!

misstasty

Sorry forgot to add that its already marked as a default from 2006 on my credit file, so surely the cannot say that I am defaulted on a default??? How will it work??

fermi

They are quoting exemption from s78 surely? Which is a consequence of s74, whether or not they mention it.

Anyway, regardless of what they are claiming, there is no agreement to supply under s78.

Why are you sending the request in the first place?

fermi

misstasty wrote: »

at least with an SAR they need to supply statements and then I can see how much is made up of bank charges ect, then maybe offer a full and final.....but I'm damned if I am paying all of what they are asking because its twice as much as the overdraft was for!

Ah! I see.

In that case a SAR to the original creditor would be a good idea.

Should show you what charges they added on, and what the balance was when it was passed to the DCA, so giving what they have lumped on as well.

Arguing the CCA matter is flogging a dead horse with an overdraft.

misstasty

Hi
Can I trouble you for some more advice please.
On my husbands credit file was a default placed by fredricksons. I sent the prove it letters (first and second) They responded (late) with a short letter to say that they were no instructed in connection with this matter and have returned it to their client.
Their client is another DCA (pheonix recoveries)
Now should I ask Fredrickson to remove the default if they are no longer dealing with the account or do I contact pheonix? Can pheonix act on the account? By act I mean can they update the default?

misstasty

Urghh
I've just googled and seen all the confusion surrounding Phoenix. Theyvdo have a current licence but have been known to trade from luxemburg.....its very messy.
Are all DCA's this shady? I'm uncovering layer after layer of various companies trading as *groups* under different names passing one debt to another DCA if they can't prove anything....its crazy! How are we ever supposed to track down who owns what when they run and hide under partner names and just send letters to say oh we can't prove anything so we'll just close it and pass you along!!!! Frustrating!!!!