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Response by Howard Cohen/Santander **WON** (claim struck out)


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Cohens rely on trying to confuse, mislead and intimidate you into paying - even if they know they have no documents. You can see how they make their money using these tactics on people who are less well informed.

 

Stand up to them all the way even if this means going to trial and you will come out on top, I did.

 

It is about time the the Courts wised up to Cohens and others who proceed with no documentation and insist it is produced at an early stage. No documents then the case should immediately be struck out.

 

If it helps Cohens are in the middle of taking Mrs Pookey to Court when we have a letter from CL Finance admitting that no Agreement exists!!

 

Pookey

I'm in the DCA kicking business ..........and business is good!!!!

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They tried using a template Default Notice and Screen shot in my case but it did not work.

 

I was in Court for just five minutes before the Judge dismissed their Case on this issue alone, I was lucky and got a very clued up Judge who was having none of their games.

 

To top it all the template Default they use was marked as coming into effect over a year after the date it was supposed to have been served.

 

Pookey

I'm in the DCA kicking business ..........and business is good!!!!

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Below is a complete defence produced for a dodgy default notice.

 

It has all the postal regulations and the reasons this is a legal requirement prior to taking further action. Did you after this "imagninary" default notice, receive a termination notice and Letter before Action ?

 

A default notice needs to show the amount of arears, a specific date not less than 14 days AFTER service to remedy the breach and the breach incurred.

 

If they decide to "recreate" such a document then they should be able to provide a computer log record backing up the production of the original. That log however will not show the amount of days allowed and any other information.. just that it "may" have been produced. Most important are the days allowed for the remedy.. if they have not allowed sufficient time for posting as per the regulations below, then that makes it invalid in any case. Say for instance they have posted on a Friday.. then that would mean the day counting doesnt start until the following Monday or if it were prior to a Bank holiday then even more time would be wiped off the days allowed.

 

This is something that needs investigating very thoroughly on any recreated document.

 

 

 

The requirement for a valid Default Notice to lawfully Terminate an Account whilst in default

 

1. Notwithstanding the matters pleaded above, the Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement.

 

2. Under the Interpretation Act 1978 Section 7, it states:

 

Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

 

2. Practice Direction

Service of Documents - First and Second Class Mail.

 

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1). Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2). To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

3). Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4). This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

 

3. Further to point 2 above, CPR rules on service also state the required timescales to be given for serving of documents :-

 

Under CPR 6.26 First class post (or other service which provides for delivery on the next business day) is deemed to be “served” The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day.

 

4. The Default notice supplied by the Claimant is dated Friday 3rd August, to allow service in line with the statutory requirements mentioned in points 2 & 3 above, 2 working days were required to allow for 1st Class postage. Thus the Rectify date should be 14 calendar days from Wednesday 8th August, namely Wednesday 22nd August 2007, not the 14 calendar days from the date of the letter as stated in the Default notice which would have been 17th August.

 

5. I therefore put the Claimant to strict proof that any Default Notice sent to me was valid and allowed the statutory 14 clear days to rectify the breach. I also note that to be valid, a Default Notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

 

6. The failure of a Default Notice to be accurate not only invalidates the Default Notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

 

7. It is submitted that the above Default Notice served s87(1) Consumer Credit Act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

 

8. For a Creditor to be entitled to terminate a regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 which states:

 

Section 87. Need for Default Notice

 

(1) Service of a notice on the Debtor or hirer in accordance with section 88 (a "Default Notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the Debtor or hirer of a regulated Agreement -

 

(a) to terminate the Agreement, or

 

(b) to demand earlier payment of any sum, or

 

© to recover possession of any goods or land, or

 

(d) to treat any right conferred on the Debtor or hirer by the Agreement as terminated, restricted or deferred, or

 

(e) to enforce any security.

 

9. The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, as below:

 

Section 88. Contents and effect of Default Notice

 

(1) The Default Notice must be in the prescribed form…

 

10. The wording must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue.

 

11. I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence.

 

12. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the Court addressed in some detail the issue of the contents of a Default Notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the Default Notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default.

 

13. The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.

 

14. Furthermore, the Arrears Total outlined cannot be accurate, as the Balance on the Account was at least partly comprised of Unlawful Charges plus additional Charges and Interest added unlawfully whilst the Account was in Dispute. Therefore, the Arrears claimed cannot be accurate, as they are themselves calculated using a Total that was itself inaccurate.

 

15. This is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

 

16. Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on XX/XX/XX. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.

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She said she has a few cases with HC and CL Finance and all of them are a nightmare

 

you can be sure that the judges are aware of this as well

post office WON 12/11/06

 

abbey.LBA sent 30/10/06.MCOL claim submitted 8/11/06.allocation questionnaire sent 16/12/06.schedule of charges sent 16/12/06.WON

 

2nd abbey claim SAR sent 3/1/07.WON.complaint letter sent 18/1/08

 

alliance and Leicester.WON

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  • 4 weeks later...

Well, their claim has been struck out as they failed to pay the hearing fee:p

 

"The Claimant having failed to pay the hearing fee as required by the court, the claim has been struck out and the claimant is liable to pay the Defendants costs unless the court orders otherwise"

 

We should have exchanged documents next week with the hearing the following week.

 

Something tells me that CL Finance is going down the pan along with Welcome.

 

Now how do I bleed them dry!!!

 

How do I calculate hours spent, preparation and lots of telephone calls and hours with the mediator on the telephone and by the way taking a mornings' holiday so I could speak with the mediator on the phone.

 

Any advice most welcome and can a site team mark me as won.

 

Many thanks for all your help Caggers

 

HH

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Well done hammy - good start to your weekend!

“The industry is rotten to the core, whether it is in-house recovery and collection, or where agents are used, or where the debt has been sold.” Andrew Mackinley MP, House of Commons, 22 April 2009

 

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... and consider all your time researching CCA, dealing with the mediation that they failed to show for, writing letters, postage, parking, travel...

“The industry is rotten to the core, whether it is in-house recovery and collection, or where agents are used, or where the debt has been sold.” Andrew Mackinley MP, House of Commons, 22 April 2009

 

If a Cagger helps you, click their star. Better still, make a donation however small, so that CAG can continue to help others.

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As a litigant in person you can claim £9.20 per hour - say 30 hours (they wont believe much more than this for a LiP), photocopying goodness knows how many pages at 10p per page, say a round £300

 

Title changed as requested

Steven

 

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Isn't it £9.25?

 

Had a track been assigned, or AQs completed? Can't remember... if no track has been assigned, then you need to itemise your costs and make a formal request to the claimant for the amount. Well worth copying the letter to the court.

 

If nu payment is forthcoming, you'll have to ask the court to make an order - it will cost, but you'll get your money back from (I hope) Cohens/CL.

 

As Steve says, £300 is widely regarded as a fair figure for an LIP - though putting in a bill for £400 may be wise, as they might offer less.

“The industry is rotten to the core, whether it is in-house recovery and collection, or where agents are used, or where the debt has been sold.” Andrew Mackinley MP, House of Commons, 22 April 2009

 

If a Cagger helps you, click their star. Better still, make a donation however small, so that CAG can continue to help others.

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Great result,well done

im in court myself with these muppets,with a dodgy DN in their witness statement,

now admitted to being "recreated" by them on ge letterhead,(naughty naughty) they didnt bank on me having the original which was different;)

oh happy days:D

Edited by dizzyblonde1966
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Isn't it £9.25?
Yep. my mistake :cool:

Steven

 

Using CAG Toolbar will generate much needed income - Download Here

 

Confused by Simple Interest? Confounded by Compound Interest? Read my Interest Tutorial

My Wins

 GE Money Won unconditionally May 2007

NatWest Won unconditionally August 2007

Brighthouse Won unconditionally August 2007

Goldfish Won unconditionally April 2008 (including CI on the basis of Sempra)

Clydesdale Financial Services (now BPF) Won unconditionally February 2008

 

Any opinions are without prejudice & without liability. Do not take any legal action on my advice alone. Almost everything I know concerning the law I learned from this site.

 

Please note, I will not give advice by PM. Please send a link to your thread and I will do my best to answer there.

 

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I got just under £300.00 off them in costs last summer - Judge told me this was a very reasonable figure for a LIP, wish I had asked for more now.

 

Don't forget to write back thanking them for your cheque when you receive it.:lol:

 

Pookey

I'm in the DCA kicking business ..........and business is good!!!!

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Congratulations on your victory. Although not at the courts stage yet, I'm having trouble with Santander over a Debenhams card. Can I just ask was the fact that they couldn't provide any sort of upgrade paperwork or new agreement when they changed your card part of their downfall in your case? I know you mention it in the thread, and it seems that the major problem was the DN. I started with a storecard in 1999 converted to a mastercard in 2006 and reissued in 2009... all I got from CCA request was the original application form for the storecard back in 1999. They've also issued a default notice which just states '14 days from the date of this letter' rather than giving a specific date.

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Biscuits,

 

I dont really know why they didnt proceed further but I did keep banging on saying "incorrect account number" and invalid DN and of course no Notice of Assignment.

 

I think what it boils down to is that they don't expect anyone to defend.

 

And now that CL Finance is part of Cattles ie Welcome something tells me they will also fold in the very near future.

 

I have had a really good week this week this and another case where SJ dismissed.

 

I wonder what next week will bring!!

 

HH

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Just to add my Congratulationss and well done HH :D

 

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Any advice & opinions given by supasnooper are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability.

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Isn't it £9.25?

 

Had a track been assigned, or AQs completed? Can't remember... if no track has been assigned, then you need to itemise your costs and make a formal request to the claimant for the amount. Well worth copying the letter to the court.

 

If nu payment is forthcoming, you'll have to ask the court to make an order - it will cost, but you'll get your money back from (I hope) Cohens/CL.

 

As Steve says, £300 is widely regarded as a fair figure for an LIP - though putting in a bill for £400 may be wise, as they might offer less.

 

Donkey,

 

case was allocated to small claims track so do I just send a letter to Cohens referring to the Order and asking them to pay me whatever and I dont have to detail it.

 

Is that right?

 

HH

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You will need to set out your costs for inspection by Cohens because if they don't pay up, you will have to back to the Court for the Judge to assess and order.

 

Help us to keep on helping.

Please consider making a donation, however small, if you have benefited from advice on the forums.

This site is run solely on donations.

 

You can make a donation

HERE. Thank you.

 

Any advice & opinions given by supasnooper are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability.

Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

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  • 2 weeks later...

Hi Hammyhound

 

Wonderful, Fantastic outcome, Congratulations making HC squirm I wish we could have been a fly on their wall to see them squirming.

 

Got the same problem with a debenhams card, no CCA with update account only have original CCA with old account number and no DN been issued to me (don't know how I shall prove that). Will keep you all posted with my saga.

 

Victory to CAG.....long may it continue.

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Just about to open the Moet when talking of costs HC have now advised that they are making an application to have the order set aside:eek:

 

Right, I am fuming, the jist of the matter is they failed to pay the hearing fee on time after being ordered to do so, they failed to comply with the unless order and that is how the claim was struck out. They caught me unawares on the phone and I thought they were telling me that the cheque was in the post but no they have decided to make an application to set aside as the hearing fee was paid to the wrong court so this is an admin error!. Spoke to the court who said HC have never challenged the order of early January nor have they written or telephoned the court. It seems because I am asking for my costs they dont want to pay in the hope their application is successful. Their defence is the admin error. What do peeps think the judge will say. HC couldn't tell me when the hearing fee was paid either. I asked why if they had paid the hearing fee they were not jumping up and down with the court.

 

Shall I wait and see what the DJ orders first as it could be that their claim is again struck out!!

 

Can someone change my title as it is not over yet

 

HH

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