Received a claim dated 12/8/15 last month for an overdraft of £2675 (post 2007 agreement).

After they first started threatening legal action back in April

I sent a OFT debt collection guidance 'prove it' letter which I found on another thread.

They finally replied to this in July by sending the following:

chequebook request and specimen signature

car registration document

copy of driving licence

application form (completed but not signed)/terms and conditions

copy of an MBNA credit card statement which was provided as ID on opening the account

They state in the covering letter 'please find enclosed copies of your agreement and statement'

but there is no statement for the Santander account only the MBNA one,

nor is there anything showing the figure they are claiming for.

I've since sent the cpr 31.14 current account request (not received a reply) and submitted the acknowledgment of service.

However I'm unsure how to go about the defence

bearing in mind what they have sent in relation to the OFT letter,

in particular the lack of a/wrong statement .

There is also the fact that approx £500 of the amount claimed is as a result of fees/charges.

Any advice on how to approach defending this would be most welcome.

Have you acknowledged the claim via MCOL?

Have you acknowledged the claim via MCOL?

Yes did it a few days after receiving the claimform.

http://www.consumeractiongroup.co.uk/forum/showthread.php?419198-You-have-received-a-Claim-What-you-need-to-do.-**UPDATED-December-2014**

Have a look at the link above and then post up answers to the questions. The guys will be able to help you better then.

Sham

You will have to submit a holding defence as they have not responded to the CPR request

Crp request should of gone to solicitors

Regardless what they say you need to stick to court timelines

Did you send of a CCA request to hoist?

its an OD so no good sending a CCA request...

defence is due this Friday by 4pm

plenty of OD holding defences in this forum.

post it up before filing mind!

dx

Have had a hectic week so no chance to post defence up before submitting but it's in now within the timeframe. I used the defence from another Hoist/Cohen thread linked below, with a few alterations to suit. Will update the thread when I hear from the court.

http://www.consumeractiongroup.co.uk/forum/showthread.php?447061-Hoist-Cohen-Claimform-Santander-Overdraft-debt

Post a copy here anyway for future reference iyam then we have a copy when you require advice on a response/how to proceed.

Andy

Particulars Of Claim

1. This claim is for the sum of ******* in respect of monies owing pursuant to an overdraft facility under account number ****** ********.

2. The debt was legally assigned by Santander UK PLC to the claimant and notice has been served.

3. The Defendant has failed to repay overdrawn sums owing under the terms and conditions of the bank account.

The Claimant claims:

The sum of *******

Interest pursuant to s69 of the County Court Act 1984 at a rate of 8 percent from the 28/7/15 to the date hereof 13 days is the sum of ****

Daily interest at the rate of ***

Costs

Defence

The Defendant contends that the particulars of the claim are vague and generic in nature. The Defendant accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.

1. It is admitted with regards to the Defendant once having had banking facilities with the original creditor Santander Bank. It is denied that I am indebted for the alleged balance claimed.

2. Paragraph 2 is denied. I am not aware or ever receiving any Notice of Assignment pursuant to the Law of Property Act 1925. It is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act and Section 82A of the consumer credit Act 1974. The Claimant has yet to provide a copy of the Notice of Assignment its claim relies upon.

3. Paragraph 3 is denied.To my knowledge Santander has never served me a notice pursuant to 76(1) and 98(1) of the CCA1974

Any alleged amount claimed could only consist substantially of default penalties/charges levied on the account for alleged late, rejected or over limit payments.

The court will be aware that these charge types and the recoverability thereof have been judicially declared to be susceptible to assessments of fairness under the Unfair Terms in Consumer Contracts Regulations 1999 The Office of Fair Trading v Abbey National PLC and others (2009). I will contend at trial that such charges are unfair in their entirety.

4. As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.

The claimant is also put to strict proof to:-.

(a) Provide a copy agreement/overdraft facility arrangement along with the Terms and conditions at inception that this claim is based on.

(b) Provide a copy of the Notice served under 76(1) and 98(1) of the CCA1974 Demand /Recall Notice and Notice of Assignment.

© Provide a breakdown of all excessive charging/fees and show how the Claimant has reached the amount claimed.

(d) Show how the Claimant has the legal right, either under statute or equity to issue a claim.

(e) Show how they have complied with sections III & IV of Practice Direction - Pre-action Conduct.

5. On receipt of this claim I requested documentation by way of a CPR 31.14 request dated 17 August 2015 namely the Overdraft Agreement, Terms and Conditions relevant at the time of inception for the agreed overdraft and Termination Demand Notice inferred by the Claimant's Particulars of Claim.

The Claimant has failed to respond or comply with this request.

By reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

Defence posted as requested.

It is now approx 35 days since the Claimant would have received it and I've heard nothing from them or the court.

Many thanks iyam71

Well no news is good news...their claim is stayed.....so do nothing until/if you hear from the court.

Regards

Andy

The Defendant contends that the particulars of the claim are vague and generic in nature. The Defendant accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.

1. It is admitted with regards to the Defendant once having had banking facilities with the original creditor Santander Bank. It is denied that I am indebted for the alleged balance claimed.

2. Paragraph 2 is denied. I am not aware or ever receiving any Notice of Assignment pursuant to the Law of Property Act 1925. It is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act and Section 82A of the consumer credit Act 1974. The Claimant has yet to provide a copy of the Notice of Assignment its claim relies upon.

3. Paragraph 3 is denied.To my knowledge Santander has never served me a notice pursuant to 76(1) and 98(1) of the CCA1974

Any alleged amount claimed could only consist substantially of default penalties/charges levied on the account for alleged late, rejected or over limit payments.

The court will be aware that these charge types and the recoverability thereof have been judicially declared to be susceptible to assessments of fairness under the Unfair Terms in Consumer Contracts Regulations 1999 The Office of Fair Trading v Abbey National PLC and others (2009). I will contend at trial that such charges are unfair in their entirety.

4. As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.

The claimant is also put to strict proof to:-.

(a) Provide a copy agreement/overdraft facility arrangement along with the Terms and conditions at inception that this claim is based on.

(b) Provide a copy of the Notice served under 76(1) and 98(1) of the CCA1974 Demand /Recall Notice and Notice of Assignment.

© Provide a breakdown of all excessive charging/fees and show how the Claimant has reached the amount claimed.

(d) Show how the Claimant has the legal right, either under statute or equity to issue a claim.

(e) Show how they have complied with sections III & IV of Practice Direction - Pre-action Conduct.

5. On receipt of this claim I requested documentation by way of a CPR 31.14 request dated 17 August 2015 namely the Overdraft Agreement, Terms and Conditions relevant at the time of inception for the agreed overdraft and Termination Demand Notice inferred by the Claimant's Particulars of Claim.

The Claimant has failed to respond or comply with this request.

By reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

Hi… does this bit about unfair charges still apply? I thought there had been a quite recent court case that said bank charges were not unfair after all… I was recently trying to hep someone claim back nearly £4k of charges from Barclays and even though they had levied the fees whilst the person was in receipt of means tested benefits, they refused to allow the claim… Dookie

Defending is different to claiming Dookist...that is used to muddy the waters and leverage.

Andy

Another letter from the solicitors today. Addressing the issues raised in the defence and including further documentation - a proper breakdown/statement for the account, including all of the fees and charges, plus DN and N of A. They go on to state that as liability has now been confirmed any reasonable offer will be considered and should no offer be forthcoming within 14 days they will "apply for judgement to be entered against you".

If they go back to the court are they likely to get the stay lifted? And can they then apply for judgment based on what they've just produced, or do they still have to go through the whole claim process?

As ever any advice would be most appreciated.

Yes the most probably can get the stay lifted but no they cant just ask for judgment unless they also make application for Summary Judgment /strike out your defence...but otherwise yes it proceeds to trial.

Andy

Unfortunately received a letter from the court this morning to inform us that the stay has been lifted and enclosing the DQ.

We have until April 19th to respond and are minded to make them an offer,

obviously minus the £400-£500 which consists solely of fees and charges.

This offer however would have to be accepted in monthly installments as there is no way we can pay in full.

Could anyone advise the best way to go about this

- wait for mediation or a part 36 offer for example?

Would it also be worth pointing out that we are already paying another debt with a CCJ

by monthly installments after applying for a variation order,

to illustrate how much the judge accepted was reasonable in that case.

And basing this offer on a similar ratio?

so they've sent all the paperwork in reply to your CPR 31:14?

iyam

when was the o/d taken out?

All the documentation has been received and it's all legit unfortunately.

Overdraft was taken out around 2009/2010.

Have they only made application to lift the stay iyam71 ? No mention of Summary Judgment?

HAve they only made application to lift the stay iyam71 ? No mention of Summary Judgment?

No mention at all. Exact wording is 'The application to lift the stay and for direct questions to be issued is granted.'.

So you will have to consider your options..in the meantime you must complete any DQ and submit it by the date stated...then you will receive a Notice of Allocation...once this is recieved we can then consider your options.

Andy

 

Overdraft was taken out around 2009/2010.

ok. just wondered as the o/d rules changed in 2011

So you will have to consider your options..in the meantime you must complete any DQ and submit it by the date stated...then you will receive a Notice of Allocation...once this is recieved we can then consider your options.

 

Andy

The DQ will be submitted by the end of the week. Will most likely be making an offer at mediation, don't really fancy going through court again.

The DQ will be submitted by the end of the week. Will most likely be making an offer at mediation, don't really fancy going through court again.

You will get a ccj against you doing that!