Well it's been 3 weeks and no reply from Cahoot/Santander. Time to draft the LBA and give them a final 14 days.

Called Cahoot, they claim there is no record of getting my letter. They say their address moved from Coventry to Belfast, however their mail does get forwarded.

It's a little non-sense because I also wrote to them with a GDPR request at that address and got a reply. Anyhow. I have now sent my LBA to their Belfast address and given them a final 14 days before I start court action.

Just had a call from Santander, left a voicemail saying they want to discuss my recent correspondence with them. Fast they are not.

Anyway I’ve already sent the LBA. Will see what they have to say.

Spoke the the gentleman at Customer Services. He’s claiming they only got my letter a couple weeks ago. Was questioning why I put down 24.9% since they never applied that rate to me. I told him its the likely rate they would have made money on my funds based on other loans and cards they offer, He said he would call back in a couple days with Santanders position. I won’t hold my breath.

I need to start preparing for court now. Can anyone assist? I’ll start to draft the POC.

Ok got the final response from Santander/Cahoot. They are not playing ball as wexpcected. Say it is time barred and there is no company error so they will not do anything.

Ready to proceed to court. Any help much appreciated.

follow the shelley/martin2006 threads

dx

Hi all,

I’ve managed to get all my credit card statements for Cahoot going back to 2002. I intend to claim contractual interest as restitution from Cahoot/Santander. 

Status:

1. Got the statements

2. Sent letter requesting the refund and interest

3. Sent the LBA.

4. Reply from Cahoot - ‘legal and fair charges etc, no refunds’

I now need to prepare the POC and start court action. Is this POC from the famous Shelly thread still valid and should work?

Quote

New POC Santander/Cahoot (N1)

Claim No [ ]

 

IN THE [xxxxx] county court

 

 

 

 BETWEEN

 

 [Mr xxxx xxxx]

 Claimant

 

 and

 

 

 -Santander PLC t/a Cahoot

 

 

 Defendant

 

 

 

 

 PARTICULARS OF CLAIM

 

 

 1. The Claimant entered into an agreement (“The Agreement”) with the Defendant on or around xx/xx/xxxx, whereby the Defendant was to advance credit facilities to the Claimant under a running credit account, Account no xxxx xxxx xxxx xxxx ("The Account").

 

 2. The Agreement essentially consisted of the Defendant providing the Claimant with a credit card (“The Card”) which would allow the Claimant to make purchases and receive cash advances on credit. In return the Defendant was entitled to charge interest at the published rate.

 

 3. The Agreement was a Regulated Agreement for the purposes of the Consumer Credit Act 1974.

 

 4. At all material times the contract was subject to the Defendant’s standard terms and conditions which could be varied from time to time.

 

 

Summary

 

5. Throughout the course of the Agreement, the Defendant has added numerous default charges to the Account for the Claimant’s failure to make the minimum payment on the due date and or for exceeding the credit limit and or if a payment is returned. (Full particulars are set out in schedule 2).

 

6. The default charges were applied in accordance with the standard terms of The Agreement which were:

a) A penalty payable on breach of contract and thus unenforceable: and

b) An unfair term under the Unfair Terms in Consumer Contracts Regulations 1999 (“The Regulations”) and therefore not binding on the Claimant.

 

 

7. The Claimant is accordingly entitled to repayment of the sums wrongly added to the Account.

 

The Charges

 

 

8. The standard Terms of the Agreement in substance provided as follows:

(a) The Defendant would provide the Claimant with the Card. The Claimant was entitled to use the Card to make purchases and receive cash advances up to a credit limit (“the Limit”) set by the Defendant. The Defendant could unilaterally change the Limit by giving the Claimant notice in writing.

(b) The Defendant was entitled to charge interest on the purchases and cash advances at the published rate.

© The Claimant was to pay the minimum payment of 3% of the amount owed or £5 (whichever was the greatest) by the due date as notified in the monthly statements.

(d) The default charges Apr xxxx – Jun xxxx were £xx.xx, Aug xxxx – Nov xxxx was £xx.xx & Jun xxxx was £xx.xx.

 

Penalty

 

9.The amount of the Charges exceeded any genuine pre-estimate of the damage which would have been suffered by the Bank in relation to the Claimant’s transgressions.

 

10. In the premises the Charges were punitive and a penalty and thus unenforceable at common law.

 

The Regulations

 

 

11.At all material times the Claimant was a consumer within the Regulations.

 

13. At all material times the terms of the Agreement providing for the Charges were unfair within regulation 5 of the Regulations in that contrary to the requirement of good faith they caused a significant imbalance in the parties' rights and obligations to the detriment of the Claimant.

 

14. Without prejudice to the burden of proof, the Claimant will refer to the following matters in support of the contention that the terms are to be assessed as unfair as at the time of the conclusion of the Agreement, and of each revision to the Standard Terms.

(1)The terms relating to Charges were standard terms; they would not be individually negotiated.

(2)The Charges were a penalty for breach of contract.

(3)The Charges exceeded the costs which the Bank could have expected to incur in dealing with the exceeding of the credit limit, late payment or returned payment.

(4) Accordingly the Charges were a disproportionate charge incurred by the Claimant for their failure to meet their contractual obligation and thus within the ambit of Schedule 2 (1) (e) of the Regulations and indicative of an unfair term.

(5) As the Bank knew, the Charges were of subsidiary importance to the customer in the context of the Agreement as a whole and would not influence the making of the Agreement.

(6) As the Defendant knew, the Claimant had no means of assessing the fairness of the Charges.

(7) In the premises, the effect of the Charges would be prejudicial to the customer who incurred them, and cause an imbalance in the relations of the parties to the Agreement by subordinating the customer’s interests to those of the Defendant in a way which was inequitable.

 

15. Without prejudice to the burden of proof, the Claimant will contend that the terms’ imposing the Charges are not core terms under regulation 6 of the Regulations and relies on the following matters.

(1) The assessment of fairness does not relate to terms which define the main or core subject matter of the Agreement.

(2) The assessment of fairness does not relate to the adequacy of the price or remuneration as against the goods or services supplied in exchange (in other words, whether or not the relevant services were value for money).

(3) The Charges are correctly described as default charges by the Defendant in the key information provided to new customers.

 

16. By reason of the said matters the terms were not binding under regulation 8 of the Regulations.

 

17. The Defendant wrongly applied Charges to the Account totalling some £xxx.xx between xx/xx/xxxx and xx/xx/xxxx. Particulars appear from Schedule 2.

 

18. On xx/xx/xxxx the Claimant demanded repayment of the sums wrongly applied.

 

19. The Defendant has not repaid them or any of them.

 

And the Claimant claims; 

 

 

(1) A declaration that the sums totalling £xxx.xx have wrongly been applied to the Account. These charges are older than the normal 6 years but are claimed by virtue of s32 (1) c Limitations Act 1980 as per Kleinwort Benson v Lincoln City Council.

 

(2) Payment of the said sum of £xxx.xx and interest in restitution of £xxxx.xx as per Sempra Metals v Inland Revenue Commissioners.

 

(3) Interest under section 69 of the County Courts Act 1984 at the rate of 29.9% per annum on the amount claimed (daily rate of £x.xx) until judgment or sooner payment.

 

(4) Court costs of [ xxxx].

I believe that the facts stated in these particulars, comprising of x pages, are true.

 

Dated

 

 

 

Signed

 

 

 

 

Schedule 1

 

From Cahoot Conditions in force (as of Dec xxxx).

 

3. Credit limit

From time to time we will work out your credit limit and tell you what it is.

 

5. Repayments

each month you must make a minimum payment. This will be;

(a)3% of the statement balance for Initial Visa, First Classic and Classic and 2% of the statement balance for Gold Barclaycard and Barclaycard Platinum or £5 whichever is more; or if the statement balance is less, the statement balance; or

(b)If a special promotion allows you to put off making repayments for a period, the amount worked out under (a) but with the relevant promotional balance taken away from the statement balance. 

The minimum payment must be received by us and paid into your account on or before the payment date.

 

 

 

 

Schedule 2

 

 

 

Attach your schedule of charges and head it schedule 2 be sure to include the date that charge was applied to the account, the date you paid the charge, the type of charge eg over limit, late payment etc

Hi @slick132 could you let me know if the above POC is still ok for Credit Card charges with contractual interest? I took it from the Shelley thread. I’m ready to proceed to court with Santander.

I've asked for comment from others who are better placed to comment on the PoC.

Site Team Andyorch has commented as follows :-

Looks Okay as a separate particulars...far too lengthy to input on MCOL characters wise.

I would drop the declaration clause  ....... that's not going to happen.

Thanks @Slick132 and @Andyorch. I'll adapt it and submit to the courts. 

Look forward to seeing their response.

Make sure you follow the guidelines in submitting separate particulars through MCOL

Been back and forward with Cahoot recently when they looked like they were going to refund some charges.

Now plowing ahead with the court action.

I was wondering would it be prudent to add a line to the POC highlighting that Credit Cards are not subject to the Bank Charges OFT hearing? It seems banks are using it as a defence to confuse the judges.

Hi all,

I've been over the years fighting to get my old statements from Cahoot/Santander.

I've got them,

I've sent all the preliminary and LBA letters and started court action to recover the charges and claim restitution as contractual interest.

The current state is that Santander have filed their defence and I need to complete my directions questionnaire.

I will redact their defence and post here.

they are denying all the claim and claim it is over 6 years old and statute barred, they have asked for the court to strike out.

Will post my POC and their defence in the next post.

I have a parallel thread in Barclaycard where I am also starting court action to recover charges and contractual interest as restitution. The steps taken with Santander mirror the steps in the Barclaycard thread.

numerous threads merged for complete history

Latest developments are that I've submitted my N180 Directions Questionnaire today.

Santander seem to be prepared to proceed to a hearing. I've removed my personal information and attached their defence below.

They are saying the charges are statute barred, not penalties and part of their terms and conditions.

They also complained about not having the schedule of charges, these were send separately and they have them now.

I informed the courts and highlighted Santander had the schedule 3 times previously in my letters, copies also sent to the courts and Santander.

Any feedback much appreciated

.Defence-redacted.pdf

Sorry to mention you by name @Andyorch. This is my Santander/Cahoot claim, exactly same setup and POC as the Barclaycard one. Running two claims at the same time. They filed their defence, attached above as a PDF any feedback would be appreciated. They mention not getting the schedule of charges, but they and the courts have in the meantime, they arrived separately from the MCOL submission.

Thanks  

Typical defence that you would expect in response...reads rather like a witness statement than a defence.

Be wary of point 25 .....are you currently indebted to the agreement ?.....they are relying on CPR 16.6 to use a set off defence.

Andy

Yes I have a balance on the card but it's several 1000's less than the claim.

Had the mediation call. Their position is standard, it's all in the T&C's, statue barred, OFT said £12 per charge was fair. Offered £115 plus my court costs. All finished and now going to court. I get the impression they also want to take this to court.

So, not that I am a glutton for punishment, this case is progressing to allocation. Cahoot/Santander have filed their defence. No applications to strike out. Had a letter from the courts today saying it is awaiting allocation.

Lets hope you get a different Judge to yesterdays hearing.

Yeah, that has crossed my mind. 

Got the court date. It’s been allocated to the small claims track (phew). Hearing is in July.