Default Notice - Case law santander sold to CL Finance

[vjohn82]

Hello to all,

 

I'm just looking for a bit of case law for Default Notices for a case I am working on...

 

The issue is this:

 

Santander sold a debt to CL Finance... CL Finance took legal action... no default notice was served... case defended... CL discontinue and pay costs... they sell debt back to Santander.

 

Santander now serve a default notice... letter written to them stating the above facts... Santander ignore letter and issue fresh proceedings.

 

And, well, that's about it.

[AndyOrch]

If CL took legal action then the agreement had been Terminated by virtue of Litigation commenced.How can CL sell a Terminated agreement ? How can Sant issue a fresh DN on a terminated agreement?

 

Was it ever sold to CL in its entirety did they have the right to commence litigation in their name as Claimant? Did they actually sell it back or just return it.Did Sant actually ever issue a DN and Terminate it?

 

Need to lie down in a dim room now:confused:

 

Regards

 

Andy

[vjohn82]

If CL took legal action then the agreement had been Terminated by virtue of Litigation commenced.How can CL sell a Terminated agreement ? How can Sant issue a fresh DN on a terminated agreement?

 

Was it ever sold to CL in its entirety did they have the right to commence litigation in their name as Claimant? Did they actually sell it back or just return it.Did Sant actually ever issue a DN and Terminate it?

 

Need to lie down in a dim room now:confused:

 

Regards

 

Andy

 

I agree with all of those sentiments... believe me. They have had a very stern letter. But I was just trying to gather some case law on it.

 

The account was fully assigned to CL Finance originally but they sold it back to Santander after discontinuing (because of no DN being served by Santander). Santander then sent another default notice according to the POC (which hasn't been received by the way) and this is where we are.

 

For clarity, Santander never served a DN before selling to CL - both companies seem to have taken action that infers termination.

[Old Cogger]

any help?

oft1002 default notices requirements.pdf

[vjohn82]

Thanks Mike; I already had a copy of that and looked it over... not really any help in these circumstances but cheers for dropping by

[intree]

I THINK THIS WILL HELP AS I WILL BE USING THIS TOO VERY SOON:

 

Collins v CPS Fuels Ltd - [2001] All ER (D) 124 (Oct)

 

Source:All England ReporterPublisher Citation:[2001] All ER (D) 124 (Oct)Court:Court of Appeal, Civil DivisionPanel:Judge, Jonathan Parker LJJ and Bodey JJudgement Dates:9 October 2001Catchwords

Practice – Strike out – Previous action between parties struck out following claimant's failure to follow directions – Claimant bringing second action seeking to re-litigate same issues – Judge striking out second action as an abuse of process – Whether judge in error – Role of judicial discretion within civil justice system.Representation

Guy Mansfield QC and Kevin Grice (instructed by Weightmans, Liverpool) for the claimant.Mark Turner QC and Ian Wood (instructed by James Chapman & Co, Manchester) for the defendant. The Case

 

Where a judge had exercised his discretion and struck out a second action by a claimant as an abuse of process, following the striking out of the claimant's original action for failure to comply with directions, the judge had been acting within his powers, after taking account of the relevant and specific factors of the instant case, and there were no grounds for interfering with that decision

[AndyOrch]

IF a defence was submitted to CLs claim then surely you should follow this route:-

 

CPR 38

 

Discontinuance and subsequent proceedings

 

38.7

 

A claimant who discontinues a claim needs the permission of the court to make another claim against the same defendant if –

(a) he discontinued the claim after the defendant filed a defence; and

 

(b) the other claim arises out of facts which are the same or substantially the same as those relating to the discontinued claim.

 

 

Hence Santy would need the Courts permission, just an angle?

 

Regards

 

Andy

[AndyOrch]

I THINK THIS WILL HELP AS I WILL BE USING THIS TOO VERY SOON:

 

Collins v CPS Fuels Ltd - [2001] All ER (D) 124 (Oct)

 

Source:All England ReporterPublisher Citation:[2001] All ER (D) 124 (Oct)Court:Court of Appeal, Civil DivisionPanel:Judge, Jonathan Parker LJJ and Bodey JJudgement Dates:9 October 2001Catchwords

Practice – Strike out – Previous action between parties struck out following claimant's failure to follow directions – Claimant bringing second action seeking to re-litigate same issues – Judge striking out second action as an abuse of process – Whether judge in error – Role of judicial discretion within civil justice system.Representation

Guy Mansfield QC and Kevin Grice (instructed by Weightmans, Liverpool) for the claimant.Mark Turner QC and Ian Wood (instructed by James Chapman & Co, Manchester) for the defendant. The Case

 

Where a judge had exercised his discretion and struck out a second action by a claimant as an abuse of process, following the striking out of the claimant's original action for failure to comply with directions, the judge had been acting within his powers, after taking account of the relevant and specific factors of the instant case, and there were no grounds for interfering with that decision

 

 

Claim wasnt Struck out Intree was discontinued.

 

 

Regards

 

Andy

[vjohn82]

IF a defence was submitted to CLs claim then surely you should follow this route:-

 

CPR 38

 

Discontinuance and subsequent proceedings

 

38.7

 

A claimant who discontinues a claim needs the permission of the court to make another claim against the same defendant if –

(a) he discontinued the claim after the defendant filed a defence; and

 

(b) the other claim arises out of facts which are the same or substantially the same as those relating to the discontinued claim.

 

 

Hence Santy would need the Courts permission, just an angle?

 

Regards

 

Andy

 

Already gone with this route... just looking for a belts and braces approach to this.

 

Cheers

[pumpytums]

Hi Vjohn,

in a very similar situation, what happened in the end?

 

Thanks

 

Pumpytums

[vjohn82]

Should have updated. Ooops.

 

I informed the solicitors acting for the resold account that the claim had previously been discontinued... and that no permission had been sought to reinstate. They discontinued again and paid £225 costs

[pumpytums]

Thanks for the reply Vjohn,

did you just phone up Northampton and then write to solicitors?

 

How did you get costs? If you don't mind me asking.

 

I'm very tempted to counter-claim against the OC, did you consider it?

 

 

Thanks again, I will ring up Northampton this morning.

 

Pumpytums

[pumpytums]

I think I just realised the answer vjohn, as the case won't be allocated to a track at this stage then costs will be due. It would eventually go small claims hence no costs.

 

Did you file another defence or just hit them with 38.7?

 

Sorry for all the questions I just don't want to mess it up.

 

Thanks

 

Pumpytums

[vjohn82]

Thanks for the reply Vjohn,

did you just phone up Northampton and then write to solicitors?

 

How did you get costs? If you don't mind me asking.

 

I'm very tempted to counter-claim against the OC, did you consider it?

 

Thanks again, I will ring up Northampton this morning.

 

Pumpytums

 

There was no need to counterclaim or file a defence; I just informed their solicitors of the position and advised a discontinuance. They asked if I would consider a discontinuance with no order as to costs and I refused. It was damage limitation on their part.

 

I got costs by preparing an N252 which you use when claiming costs. It's not a complicated route and they usually pay because they have to foot a £300 hearing fee. Anything under this figure, or thereabouts, will usually be conceded.

 

I think I just realised the answer vjohn, as the case won't be allocated to a track at this stage then costs will be due. It would eventually go small claims hence no costs.

 

Did you file another defence or just hit them with 38.7?

 

Sorry for all the questions I just don't want to mess it up.

 

Thanks

 

Pumpytums

 

Costs can still be claimed on the small claims track. I take it you're a litigant in person? If so CPR 48.6 applies.

 

If they have reissued proceedings with seeking permission you need to draft a very strongly worded letter with the phrase "abuse of process" littered everywhere.