Santander Response to Sons claim for excess charges and PPI

[AndyOrch]

DPA/QUOTE]

 

DOH! Data Protection Act.

 

[tedney]

when the DN was issued, it was satisfied within the correct time frame, so no DN should be shown on the account.

Hello again! Is this statement, from my post #41 above correct please? Thanks t

[Mike_hawk]

Hi Tedney

 

Not read the whole thread but assuming you mean should a satisfied default have been recorded s.89 would be applicable

 

http://www.legislation.gov.uk/ukpga/1974/39

89 Compliance with default notice.

 

If before the date specified for that purpose in the default notice the debtor or hirer takes the action specified under section 88(1)(b) or © the breach shall be treated as not having occurred.

[tedney]

Hi Tedney

 

Not read the whole thread but assuming you mean should a satisfied default have been recorded s.89 would be applicable

 

http://www.legislation.gov.uk/ukpga/1974/39

89 Compliance with default notice.

 

If before the date specified for that purpose in the default notice the debtor or hirer takes the action specified under section 88(1)(b) or © the breach shall be treated as not having occurred.

Brilliant, thanks for that Mike, I have tipped your scales! Regards t.

[DonkeyB]

Remember though that a default being recorded with the CRAs is NOT the same as the issuing of a default notice. A default notice is a statutory precursor to recovery action in the courts (enforcement).

[tedney]

Remember though that a default being recorded with the CRAs is NOT the same as the issuing of a default notice. A default notice is a statutory precursor to recovery action in the courts (enforcement).

OK, thanks, so are you saying that DN recorded on a CRA file on incorrect date is not covered under the act? T

[DonkeyB]

DNs aren’t recorded on CRA files. Defaults are. They are totally different things.

[Mike_hawk]

Hi Tedney, you need to check whether the default recorded was an accurate representation of the account status at that time.

[DonkeyB]

Spot on Mike. You need to know exactly what happened when. Sometimes a default is recorded with the CRAs ages after a DN has been issued.

[tedney]

Hi Tedney, you need to check whether the default recorded was an accurate representation of the account status at that time.

 

Hello, Account was "financially written off" at the time the OC recorded a Default on the CRA files, but no DN sent by OC to creditor until 2 months later. The DN was complied with. one CRA file shows Default on every month since OC original default to date, but, as stated, DN was complied with, so surely default indicator for those months should be removed from CRA files? Thanks t

[Mike_hawk]

Do you know whether the account was in arrears at that time? Whilst markers don't rely on the CCA they must still be accurate and comply with the DPA principles, if the account was up to date there can have been no default.

[tedney]

Do you know whether the account was in arrears at that time? Whilst markers don't rely on the CCA they must still be accurate and comply with the DPA principles, if the account was up to date there can have been no default.

Yes, account was in arrears at the time the Default is indicated on the CRA files. Two of the CRA's are indicating a default for each month since, with no settlement date. The third CRA was showing the same, but has now been amended to showing just a default for the month when no DN was sent, and no monthly mark after, and the account as settled a month befor it was! As I think I now understand, a default will not be removed from CRA file, even though no DN was issued at that time to the creditor? The OC was alerted to discrepancies some time ago, but only one CAR report has been changed, and the others have been updated since with no changes. t

[DonkeyB]

Yes, they appear to have put the cart before the horse.

 

They recorded a default with the CRAs, but did not issue a default notice. They can do this – they may not intend to begin enforcement action, and that is the purpose of a DN.

 

If they then issued a DN which was complied with, they were allowed to maintain the recording of the non-payments, but should have brought the account up to date (ie. marker = 0). Did this not happen? That’s what you should complain about.

 

The non-payment markers are, I think, valid, but the account should not be recorded as still in default if it is not.

 

Howard Cohen obviously arranged for a DN to be issued (though it sounds like it may be invalid anyway) so they could continue with legal action. No DN = no enforcements by the courts.

 

However... they are general points. There are some specifics in your case.

 

You stated first up that the account was not used since 2007. The original default recorded with the CRAs by Santander should, therefore, have been recorded contemporaneously, ie. within six months of the first missed payment – so sometime in late 2007 or early 2008, which would fall off in late 2013 or early 2014. What is not right is the default being recorded as November 2011, which will blight his credit file until 2017.

 

This is an issue to take up directly with Santander, and copy your correspondence to the OFT and the ICO for misuse of data. Threaten to take legal action for deliberately misrecording the data, unless the default is either reset correctly, or removed altogether. The fact that it has been set incorrectly and prejudicially for some time now is cause for damages, in my view.

[tedney]

Spot on Mike. You need to know exactly what happened when. Sometimes a default is recorded with the CRAs ages after a DN has been issued.

 

Just seen last post Donkey B. Thanks for that. t

[DonkeyB]

Just seen last post Donkey B. Thanks for that. t

 

See above – doesn’t matter.

[Mike_hawk]

Waht about when a default is recorded BEFORE a DN has been issued?

 

The DN is a prerequisite to enforcement...... the actual default/arrears could be accurately stated without the issue of a DN

[tedney]

The DN is a prerequisite to enforcement...... the actual default/arrears could be accurately stated without the issue of a DN

Hello Mike, I posted this before I saw Donkey B's post #59? Appreciate DN is prerequisite, but OC tried to enforce before DN issued! Donkey B has precisely identified the issues in that post.

[Mike_hawk]

Read yours after I posted, if they had continued in the case I don't believe the court would have looked too kindly on it for filing without a cause [and seemingly in full knowledge of same]. One thing that does stand out is the mediated agreement to amend status to settled. As far as I know mediation is binding on all parties once signed, if the CRA's haven't been updated to show settled I'd be inclined to read that as a clear breach of the agreement. It would certainly seem to compound the 'error' Donkeyb described in his previous post.

[tedney]

Read yours after I posted, if they had continued in the case I don't believe the court would have looked too kindly on it for filing without a cause [and seemingly in full knowledge of same]. One thing that does stand out is the mediated agreement to amend status to settled. As far as I know mediation is binding on all parties once signed, if the CRA's haven't been updated to show settled I'd be inclined to read that as a clear breach of the agreement. It would certainly seem to compound the 'error' Donkeyb described in his previous post.

Thanks again Mike, will certainly use that point too. I will update when status changes. Regards t

[tedney]

Posting a link here (hopefully, as not tried before) for Womble68's thread. Has anyone had this experience in court please? Please see post number 15

http://www.consumeractiongroup.co.uk/forum/showthread.php?399130-Reclaiming-Santander-Credit-Card-Charges&p=4368182#post4368182

Edited October 14, 2013 by tedney
addied post reference

[citizenB]

 

 

So Santander have managed to get away with charging me late payment fee's on an account who's balance was made up of miss-sold PPI charges which they admitted to. The judges did make a number of interesting statements in his summing up that could have wide ranging implications on future cases, I know that District Judges don't make case law but once Santander get the ruling from this one you can bet that they will try to use it to influence other judges. I attempted to argue that the ruling in OFT v Abbey National handed down by the supreme court only applied to bank charges & he stated that he believed that as a point of law by implication it must also apply to any situation where a bank provides a services & charges a fee meaning in his eve's it applies to credit card penalty charges too.

 

 

 

This is the post referred to - this is indeed worrying that a Judge has seen fit to adjudicate in this way.

 

It is absolute rubbish what he says - the Supreme Court ruling in the banks v OFT was purely bank charges.

 

The OFT had already ruled on credit card charges and that they were indeed unfair.

[tedney]

Hello

Helping my son with old car loan issue,

trying to get back excess charges and PPI.

 

S's response:

 

"as the sale took place over 6 years ago, and as we believe you would at that time,

through due dilgence, have been able to discover any alleged wrong doing,

your claim is considered time barred under the Limitation Act"

 

What would be our best course of action be here please?

It would seem quoting s. 32 back to them may not be effective?

 

Any help would be welcome.

Thanks

t

[SabreSheep]

Interesting

 

What due diligence is that then.

 

If they were to use that in defense of a claim im guessing they would have to prove due diligence on behalf of the claimant.

[tedney]

If they were to use that in defense of a claim im guessing they would have to prove due diligence on behalf of the claimant.

Good point, I think that might be impossible for them!

[BankFodder]

Did they give you that response in writing? Please post it here. It is quite amazing.

 

I think that you should make an immediate complaint to them and tell them that you wan to go to the FOS