Satander/cohen claimform - 2010 Store card debt

[Cena34]

Anyone got any answers to my post yesterday???

[citizenB]

I imagine a lot of people are enjoying the sun, I am sure someone will look in over the weekend

[Cena34]

I imagine a lot of people are enjoying the sun, I am sure someone will look in over the weekend

 

It's raining today folks so is anyone there?? Really want to try and get something sorted with this tomorrow as I'm not in work so have a bit of time for once. Thanks

[citizenB]

Have flagged your thread for assistance.

[mystery1]

Did you send a S78 request ?

 

Did you ever get a default notice ?

 

Was this opened in 2010 ?

 

M1

[Cena34]

s78? is that the CCA request? If so yes there is a copy of rhe agreement a few posts back, also a copy of the default notice.

 

Yes opened in 2010

[mystery1]

The S78 request with which you sent £1, requires an easily legible copy to be sent. Would you say the paper copy you have is easily legible ? (not on the basis it would suit you, but in reality)

 

M1

[Cena34]

Yes it is legible

[mystery1]

That default notice is bad. 14 days is not a date as is required by law. It's a risky argument not 100% guaranteed although it's a factually correct one. Depends how badly you need/want to fight it.

 

M1

[Cena34]

OK so the default notice should have a specific date on not just 14 days from the date that is on the notice?

Is there anything in the two different sets of terms and conditions that I received from the two CCA requests I did (one to solicitors and one to Santander)?

[mystery1]

Very difficult to read here. There is merit in that but only if the 2nd one is incorrect. The copy must be "honest and accurate" but can be corrected at anytime. If there are mistakes, even small ones (not typos), with specific terms then it cannot ever be an "honest and accurate" copy. Depends how good you are at reading documents and knowing what the terms should be. Would you spot a 0.1% apr mistake or similar small error ?

 

If the last S78 copy is "honest and accurate" a previous pile of crap has little relevance.

 

Did they send a signed statement of account with the S78 copy ?

 

M1

[Cena34]

No just the signed agreement

[mystery1]

Consumer Credit (Enforcement, Default and Termination Notices)

Regulations 1983 (SI 1983/1561)1983

 

http://www.johnpughschambers.co.uk/Consumer%20Credit%20(Enforcement,%20Default%20and%20Termination%20Notices)%20Regulations%201983.pdf

 

Not forgetting that the 7 days mention in the above link is now 14 days.

 

M1

[mystery1]

No just the signed agreement

 

They haven't complied with s78 then.

 

Para 16.

 

M1

HFO CAPITAL V ROBINSON JUDGEMENT.pdf

[Cena34]

In the document from the above link it says -

 

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than

fourteen days] after the date of service of the notice, before which that action is to be taken

 

so that implies at should state a specific date, but further down there is an amendment -

 

Para 3: in sub-paras ©, (d) words "not less than fourteen days" in square brackets substituted by SI 2006/3094, regs 2, 3.

Date in force: 19 December 2006: see SI 2006/3094, reg 1.

 

Is that just the amendment from 7 days to 14 days and the first statement is correct?

 

Just looking at the default notice, it says -

 

To remedy this breach you must pay the arrears within 14 days from receipt of this notice. You may telephone us on 0845 600 0025 with you payment proposals.

 

IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH.

 

The 'BEFORE THE DATE SHOWN' part is highlighted on the default notice but there isn't a date shown just the statement '14 days from receipt of this notice'

 

Am I clutching at straws??

[mystery1]

IMO it has to be a date. Legislation says so. No case law i don't think so if the judge hates you you might have to appeal if it comes down to that.

 

I'd certainly include this but i'd need to be desperate to have this as my only point especially if this is fast track. small claims i'd run with it regardless.

 

M1

[Cena34]

Got to go out and pick the Mrs up, will read post #70 when I get back, thanks for all the help so far

[Cena34]

Just going through all the paperwork again, the credit agreement and terms I received from the solicitors were as a result of my CPR31.14 request as these were mentioned in the POC so therefore they didn't need to provide me with a statement of account? IS this correct?

 

The CCA/S78 request I did to Santander (really to see if they provided anything different than the solicitors) has provided me with a statement of account.

 

So it looks like the solicitors have provided what they needed to or am I missing something?

 

The default notice angle seems OK but I'm not sure this is enough for a defence...thoughts??

 

I'm considering contacting the solicitors after working out exactly what is owed, deducting charges etc to see if they will accept a figure in instalments, if they do what happens to the court action?

 

Should I mention Tomlin orders or try to reach agreement without doing so in case I have problems further down the line with repayments.

 

Another thing I've just noticed is the default notices I've received are different!

 

The original default notice received in March from Santander states arrears of £153.43 yet the one received from the solicitors states arrears of £337.95 and is set out slightly differently but both are dated the same!

Edited August 20, 2012 by Cena34
more information

[mystery1]

The requirement for a statement is found in cca s78 so yes they need an "honest and accurate" copy of the agreement with any variations and must include a statement for your s78 request.

 

CPR 31.14 does not have any prescribed form for a reply other than if they mention it, you can ask for it. No need for a statement with the agreement.

 

If a s78 copy and a 31.14 copy are different then you wonder why they are different (has there been a variation or is one copy wrong?)

 

It's always worth agreeing repayments if you are not convinced you'll win but if you have larger debts which may go legal it might be worth taking a hit in the small claims court to get used to it and perhaps even win but each individual has that choice to make for themselves.

 

As for the default notices, if you are settling mention it for pressure but if fighting send a part 18 request to find out which one is the one they are relying on.

 

M1

[Cena34]

The agreement provided by the solicitor and Santander is the same. the terms and conditions are different and I'm fairly sure that the T&C provided by the solicitor is the ones that would have been issued with the card and the T&C provided by Santander are the most up to date.

 

I think the default notice provided by the solicitor will be the one they are relying on as that is what they produced after the CPR 31 .14 request but I'm fairly sure they have thrown this together based on information they hold as it is quite different than the one sent by Santander in March.

 

I have got much bigger debts and would definitely take my chances at court with those but this is for a relatively small amount and doesn't seem worth a CCJ....decisions decisions!

[mystery1]

The agreement provided by the solicitor and Santander is the same. the terms and conditions are different and I'm fairly sure that the T&C provided by the solicitor is the ones that would have been issued with the card and the T&C provided by Santander are the most up to date.

 

 

The recipient of the s78 must provide the original and variations not one or the other. http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2009/3417.html para 108.

 

HFO v Robinson does seem somewhat similar to yours.

 

M1

[Cena34]

The recipient of the s78 must provide the original and variations not one or the other. http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2009/3417.html para 108.

 

HFO v Robinson does seem somewhat similar to yours.

 

M1

 

Mystery1 - I'm getting a bit confused now!

 

Para 108 states - Accordingly, I conclude that Reg. 7 requires a copy of the executed agreement in its original form as well as a statement of the terms as they are at the time of the request.

 

Does this not mean that they only have to provide the terms as they are at the time of the S78 request?

[mystery1]

"As well as"

 

M1

[Cena34]

Ah I wasn't reading it that way. I read it that they should provide a copy of the signed agreement in it's original form and a copy of current T&C

[mystery1]

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2009/3417.html

 

Para 234 (4)

 

M1