Thread: Santander taking me to court...advice please!

Originally Posted by Must_Crush_Capitalism

Hi All,

Recently I asked Santander for a complete statement of my account as they were still chasing me for payments on a Burton's card account which I was sure should have been pretty much paid off by now. They claimed that I still owed them some £250 on a card that I hadn't used in 5 years and never spent more than £200 back when I got it (I know, stupid to get it to start with).

The statement came through incomplete but what I saw of it, just under £200 comprised of late payment charges. So I sent them a letter saying that I was sure that late payment charges on store cards are not lawful (wouldn't be supported by a court) and suggested that we just say a friendly goodbye. A few days later I get a notice from a county court saying that Santander are claiming my balance plus another £75 in court and solicitor fees.

Currently I am unemployed and can't afford to pay them any money (which I stating in my original letter). I sent the notice back submitting a defence saying that they are chasing me for late payment fees and that I am unemployed. Also put in a copy of the letter I sent for their info.

Today I got a court letter saying that they've sent my defence to the claimant. Am I in good shape? I have more than enough worries right now than to have to deal with this. What can I expect from here? I didn't even get any notice from their solicitor that they plan to take me to court - they just filed, not a word from them. I thought that you had to give some notice? Anyways, any advice would be appreciated. Thanks.

Not the best of starts MCC. Can you tell us:

• When the account was opened
• What documents you have for the account, default etc.
• What you put in your defence, word for word.
• Is the claimant Santander? (Will be on the Particulars of Claim form).

Ok, this is in a mess so we do need to get on top of it as quickly as possible. There is a risk that the claimant might just push for summary judgement against you as the defence is essentially so weak (no offence) .

Can you update us on the dates the court is working on - eg what date did the defence have to be in etc, when was the claim filed, do you have any directions from the court yet?

You also need to put all the paperwork in order and get the default notice scanned immediately, if you can't scan it let us know:

• Date of the default letter
• The date you had to pay the default amount by
• If the date is missing and it just says 'within 17 days' for example we need to know that instead

In the meantime do you have the money to pay this amount in full, if you do you might be better off offering to settle in full in exchange for them dropping the case. If you can't pay in full then you might as well try to fight it but depending on the dates involved it could get tricky. Get that default info on here first ok?

Originally Posted by Must_Crush_Capitalism

Thanks, I will try to pull together all the documents and post tomorrow. I have the money put it will put me deep into my overdraft and I don't want that. Why do the court dates matter? Am I able to settle once a court date is made? Would rather wait till they make a move before I surrender.

If they 'win' you'll be looking at a county court judgement, not good. You will however have about 30 days or so to pay the money and avoid having your name registered in the public directory and the CCJ effectively quashed so perhaps hold the money aside on the off chance you can't turn things around. Given that you might as well fight it and see what documentation they have.

Court dates matter as we need to know where you are in the process. Eg - are we too late to do various things.

As for settling court action is never an inevitable matter, both parties have every right to settle it between themselves at any point in time before the judge gets to make any decisions. It would be for you both to reach an amicable solution and for the claimant to acknowledge that by filing a notice of discontinuance (which you'd probably have to pay for as part of any realistic settlement arrangement).

As litigation has commenced you really need to gain sight of the paperwork they are relying on asap. GE Money would have passed all of this on to Santander when the change happend last year (in theory) and this may be a chink in their armour.

Also, GE Money on the older Burtons accounts failed to reserve any contractual 'right' to apply any charges. In contrary to your earlier statement about the court being indifferent to penalty charges as this is for running credit the opposite is the case. Also, the T&C's Burton used to use were seperate to the application form and on the application form there is unlikely to be any reference to the T&C's being part of the signature document, eg 'Please refer to the T&C's overleaf' or 'refer to the T&C's adjoining this application'.

As such the T&C's appear to be seperate to the actual application and the creditor will need to show how these T&C's were linked to the application/agreement for them to be binding. Otherwise the claimant could stick anything on there and insist post signing that you agreed to give them your house if you were late with a payment. Extreme example but you get the point.

Are you familiar with a CPR application? I presume the court will not have assigned a track to the case so this will be appropriate. Can you tell us:

Is their claim for more than £5000?

Can you copy out their Particulars of Claim word for word leaving out any personal stuff. We need to know what they are relying on.

Originally Posted by Must_Crush_Capitalism

Oh, how much does the notice of discontinuance cost?

Don't worry about this right now, the costs I were referring to will be inclusive of all costs they've incurred. Let's try and avoid that first.

No worries, will post tomorrow morning as doing some other bits more urgent for someone else right now

Originally Posted by Must_Crush_Capitalism

Thanks so much for this, you're a star.

Particulars of Claim:

The Claimant's claim is for the sum of 265.50 being monies due from the Defendant to the Claimant under a regulated credit agreement between the Defendant and Santander Cards UK Ltd under ref ... and assigned to the Claimant on 27th January, 2010 notice of which has been given to the Defendant.

Is your agreement between you and Santander or you and GE Money? I suspect there is no such agreement between you and Santander as the application/agreement will have no mention of Santander on it!

The Defendant has failed to make payment in accorance withthe terms of the agreement and a default notice has been served upon Defendant pursuant to Section 87 (1) of the Consumer Credit Act 1974.

Do you have this default notice at all? If so please give me the date of the default and the wording on it that states when you have to pay by.

Pursuant to clause 7 of the agreement, the Claimant also claims contractual interest at a rate of 26.478% per annum from the date of these proceedings to the date of judgment, or sooner payment, accuring at a daily rate of 0.25.

You need to check that they have reserved the right to apply this interest. If they haven't you need to deny them this.

What should be my move in getting the paperwork that they are relying on. From what you say it should be unlikely that T&C with GE will include these late payment charges so should I be asking Santander for a copy?

Was their claim issued through the Northampton Bulk Centre? If it wasn't then they shoud have included a copy of the document they rely on with the claim form.

I don't even know what CPR means so I'm obviously not familiar . And, as stated above, the value is under £5K.

Good, the matter is straight forward and the amount under 5k so this will be assigned to small claims. After this post I'll add a CPR letter for you to send to the claimant. You need to send this as a matter of urgency using 1st class recorded post or if you can afford it Special Delivery, that would be preferable given the time scales and importance right here, right now.

Could you elaborate on why the court wouldn't be indifferent to these charges because they were for running credit?

Many people are under the false impression that all charges relating to banking and creditors were part of the recent OFT test cases. This is not true and something the bankers are quite happy to let people stay ignorant of. Bank charges are still being fought with new arguments but none of this, including the OFT stay on claims affected credit card charges.

If you recall in the past CC companies frequently charged up to £40 in some cases for late payments blah blah. Then, almost overnight they all capped their charges at £12. Wasn't that nice of them? No. The OFT, snowed under with banking charges decided its time could be better spent (don't know how) by concentrating on the bigger bank charge issues. The OFT then told all of the banks and CC companies that they would not investigate any charge complaint if the sums charged per breach were not in excess of £12. Over night, credit card charges dropped so that the OFT would not intervene with the CC companies.

Credit Card companies/banks then set about spreading more misinformation by telling those in the know (complainants) that the OFT had stated this new amount was the revised 'fair charge they were allowed to charge'. This is complete nonsense. The OFT never sanctioned this amount as fair, merely they indicated they'd leave any company alone as long as they didn't charge more than this sum.

As such you are still more than entitled to question £12 as the banking issues are a completely seperate area, the OFT farce having nothing to do with any of this. Also, if prior statements show charges in excess of £12 you instantly have proof that the amount the claimant is asking for is incorrect. Ask te claimant to prove £12 is reasonable and proportional for the inconvenience they 'suffered' when you were late paying.

These charges are still penal in nature and careful use of the Unfair Relationships argument will shift the burden of proof onto the creditor to prove to you and the court that this amount is a reasonable and proportional sum for their losses. Of course, they will not be willing to reveal their true costs.

I don't understand why there's a huge consumer movement to get these arbitory charges back from creditors and that's not relevant to my case.

If I were being the aggressor in this case (rather than being taken to court for these charges) would I be in a better position?

Generally it's always better to defend than to attack as the very important burden of proof is on them and not you.

Will add the CPR stuff shortly.

Send this to the solicitor/claimant as a matter of urgency, as detailed in my earlier post. Keep all proof of sending it and when it's been delivered print out the proof of their acknowledgment. Don't allow them the opportunity to deny having received it. This request is something they should respond to fully and quickly.

(YOUR ADDRESS)

(DATE)


Re: (CLAIMANT) v (NAMES OF DEFENDANT/S)

Case No: (ADD CASE NUMBER)

CPR Request

Dear Sir/Madam,
On (DATE) I received the Claim Form in this case issued by you out of the (COURT NAME) Court. I confirm I have returned my acknowledgement of service to the court in which I indicate my intention to contest your entire claim. In order to compose my defence I require sight of all related documentation that supports your claim. I therefore extend my appreciation in anticipation of your assistance.

The court will be aware of this request and I will enclose a copy in my defence bundle. Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of each of the following document(s) mentioned in your Particulars of Claim:

The agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR Practice Direction 16 Paragraph 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

The Deed of Assignment
The Notice of Assignment
The Default Notice
The Termination Notice
All other documents mentioned in your Particulars of Claim.

Any other documents you rely upon to support your claim.
Additionally, if you intend to rely on any reconstructed document you should inform me now.

You should ensure compliance with your CPR duties and ensure that the document(s) I have requested are copied to and received by me within 7 days of receiving this letter.
Your CPR duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy.

Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s), which are now in the possession of a third party.

In accordance with CPR 31.15(c) I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. A failure to do this will result in the court being advised of your failure.

In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence in return for your delay. I will then update the court on our revised agreement.

Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence in the interests of complete clarity.

If you are unable to comply with this request and believe that you will not be able to comply with this request you must tell me in writing immediately. Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.


Yours faithfully,

NAME IN INITIALS - dont sign

I would also recommend sending a Subject access request to the original creditor so that you can gain access to all of the information they hold on you such as statement histories as this will allow you to audit their claim for accuracy and determine the level of charges that may have been added. This costs a maximum of £10 so just enclose a postal order for that amount so they cannot reject it.

They have around 40 days to return this to you so it may or may not be back before the claim continues. Either way you need sight of the documentation as soon as possible. Make sure this is sent recorded and again keep all proof of postage.

YOUR ADDRESS



DATE


ACCOUNT/REF:


Data Subject access request


Dear Sir/Madam,
I am writing to ask for your assistance with the provision of documentation relating to the above referenced account. Accordingly I enclose the sum of £10 in postal order form and trust you will comply fully and within the timescales applicable.

There are various acts covering your obligation to have maintained a full account history, which you will be aware of. I will therefore expect a full history for each account in my name as you have a legal obligation to hold this information for 6 years after any account has been closed and in some cases depending on tax dates, for 7 years.

Simply because an account may officially be closed will not substantiate a claim that I have no right to see it. If you are unwilling to provide me with any of the account details from closed accounts please provide me with your justification and source of information you rely upon to establish the lawfulness of your position. In the interests of clarity however I would suggest the bank is entirely co-operative from this point forward.

As such, please supply me with a complete list of transactions and charges relating to my complete history with your organisation from the very outset (do not limit this to 6 years, I require the complete history). Alternatively, a complete set of statements for that period will be acceptable, for any and all accounts that I may have held which demonstrate the debt total you are demanding.

I require an exhaustive search, and will need to see all records you hold on me, this is not a disproportionate request given the nature of the Termination notice issued. This should include but is not limited to:

·Copies of all terms and conditions applicable to any and all accounts to demonstrate any contractual right the bank relies upon to support its charge policies and copies of any terms and conditions that have been varied since the inception of any account.

·A transcript of all transactions, including charges, fees, interest, repayments and payments and both the original amount of any credit amount and any repayments made to any accounts.

·Where there has been any event in the alleged account history over this period which has required manual intervention by any person, such as to impose penalty fines, or increase credit limits, or make adjustments to the interest rate, then I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention. If you are unable to supply this data because there has been no such manual intervention, then please be so kind as to confirm this in your response.

·Copies of any cancellation rights sent to me, with a copy of any proof of postage that you hold.
·True copies of all default notices or enforcement notices that you claim to have sent me (there are 3 as of today’s date listed with Equifax), with a copy of any proof of postage that you hold.

·Documents relating to any insurance added to any account, including the insurance contract and terms and conditions, date it was added and the date it was deleted. Plus, all pre-sales training notes for your employees underwriting and advising on such contracts of insurance, and any sales notes made during the negotiation and sale of such insurance.

·Details of any penalty or other collection charges added to any and all accounts; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

·Specific details of the fees or charges levied by any other agency in respect of any account and a detailed breakdown of said fees or charges, what each charge relates to and on what date said fees or charges were levied.

·A copy of any notice of fair use of my data as required by the Data Protection Act 1998.

·A list of third party agencies to whom you have disclosed my personal data and a detailed summary of the nature of the information you have disclosed.

·Policy notes in relation to payment demands whilst any account was in dispute, and at any other time when additional payment demands were authorised.

·Document management records and policy notes in relation to any documents handled, copied or destroyed during the lifetime of any account.

·Full copies of all contracts, which you believe, exist between myself and your organisation, including copies of any documents you hold in support of it.

·Details of the identity of any individuals or organisations who have provided you with my personal information together with copies of any letters of instruction provided by them, or any contracts entered into between yourselves and the third party, and the relevant dates to which those contracts related.

·Copies of all documents which include any of my personal information including copies of any contracts or invoices, emails or computer records containing my personal information, or any records which pertain to this information.

·Full details and copies of any documents upon which you replied when you have provided my personal or financial information to any individual, organisation or third party.

·Full copies or transcripts of any computer logs or database records kept in relation to myself or in relation to my financial or personal information.

·Details of all systems you currently have in place to ensure my personal or financial information is kept securely, including details of those officers who currently have control of same, and at the time it was held or provided to a third party.

·Where any previous information or records held have been deleted or disposed of, the methods used to do so, including dates, certificates or references confirming details of destruction. Where you are unable to provide such certificates, please provide a declaration, signed by an authorised officer of your company, confirming the dates and methods of destruction of this data.

·Full hard copy printouts of any of my personal or financial information held in a digital, magnetic or any other format, which is held in any archives, backups or other storage devices/locations.

·Your registration number with the Information Commissioners Office.

·Your Consumer Credit Licence number.

·Full copies of any correspondence in postal, email or any format which you have entered into with any individual, organisation or third party which contains my personal or financial information, or which pertains to myself.

·True copies of any applications for credit or for current/business accounts held, together with a declaration from the bank indicating if it is a true or reconstructed copy.

·All documentation confirming overdrafts for any accounts as these form a substantial part of the outstanding sum.

·Any and all sundry information applicable to the account not requested above.

If there is specific information, which you require in order to satisfy yourself as to my identity, please let me know by return. However, please note that the above address is the one which you normally use to communicate my private business to me and which you have hitherto found to be acceptable.

Please note that the Postal orders I have supplied are NOT to be applied to any alleged debt but used only for purposes supplied.

Yours Faithfully,

PRINT NAME DON’T SIGN

Cool. Just stay aware of any dates and be quick if you get any letters in etc. More time we have the better.

Just a bit of a pointer on the POC above. I have exactly the same POC from Cohen/CL for a GE Money Account.

They cite s7 of the clauses on the agreement for interest. This is from the varied terms as supplied by Santander last year.

What really interests me in this is the DN. I have a DN which I am confident is non compliant but cant find any others to back up my case or give me confidence that it is non compliant.

Would be really interested if anyone could point me in the direction of a recent GE/Santander Default Notices.

Beau