HPH2/Cohen claimform - old Abbey OD from 1992

[shamrocker]

You mention earlier in this thread that "they called it in in May 2009" - what did you mean by "called in"?

 

Would it be possible for you to scan or photograph and then post up a copy of their WS

and also the page containing the most recent transactions that took place on the account?

 

 

Obviously you'll need to remove any personal or identifiable information before posting.

[shamrocker]

They called in, almost all overdrafts, basically telling the customer that the overdraft was being withdrawn, regardless, or whether the account was being managed and within limit or not. There was supposed to be notification, but the same happened with my wife. My wife was able to negotiate hers 's back to half what it was, but I was left overdrawn in a now unauthorised position.

 

I'll try to get a copy posted up tomorrow of the relevant pages of their WS.

 

Thanks - had you been active in using the account up until the time they called it in? Had you gone over the authorised limit at all?

[shamrocker]

What 'right' were they seeking to exercise when they 'called in' the overdraft? Has this point been clarified in the claimant's WS?

[shamrocker]

Feel free to PM me if you like. Can't guarantee that I'll have the answer though!

[shamrocker]

I sent you a PM, let me know if for any reason you don't get it. If answering my question, please do it by PM, not on the main board. I'm sure you'll understand why.

 

PM received! Answering now.

[shamrocker]

Going through their WS...

 

Where's the default notice (template wording) they mention?

 

They refer to paragraph 12 with regards unauthorised fees and interest - do you have that document.

 

Do you have the overdraft extension application they refer to from 1998?

 

In one of my earlier posts, I asked if you had gone over the agreed limit, etc. You said no. What's the situation with all the charges they've applied?

 

I didn't realise your hearing was tomorrow! You probably don't want to hear negative stuff right now, but you could have fought this much better if we'd got onto it much sooner. Nevertheless, you will just need to go in with a plan and focus on whatever weaknesses you can and then hope for the best.

 

Sham

[shamrocker]

That's the Notice of Assignment - doesn't have anything to do with paragraph 12. It must be some terms and conditions document. It'll be exhibited as SLW7.

 

So, they just withdrew the overdraft facility?? The overdraft application was for a £2,000 credit limit - when were you given the higher limit? I'm not sure the limit matters actually, but it would be interesting to see any terms, particularly to find out if it contains anything with regards withdrawing the overdraft facility.

 

Do you have any correspondence to do with them withdrawing the overdraft?

[shamrocker]

Post 86 is SLWY.

 

From memory (I'm pretty sure on this one), the original request for an overdraft was one or two years after opening the account, and it was for £1,000. There is no copy of that in the WS. The application for the £2,000 was the document you see, in 98, so about 5 years after the original overdraft.

 

There was no letter, about terminating the overdraft (or not that I got, otherwise I would have been straight on the phone), but apparently it was a standard one sent to most customers. It was nothing about how you had kept your account with in good standing. They went out about May 2009 apparently with one month's notice.

 

I should imagine the Santander still have a copy of it somewhere on file. Again, that is not included in the WS. Just a by the way, the solicitor sent their WS right at the last minute, it was dated the 14th, but there was no way it was sent that day, and impossible for it to arrive two weeks before the 23rd even if it was.

 

Ok, thanks.

 

As things stand, do you have a plan in mind for how to contest this tomorrow?

[shamrocker]

Sorry, ref. Post 86 is the default notice template, not anything to do with terms of the account. The exhibit with the terms is actually SWL2 - do you have it?

[shamrocker]

I'm drafting some points up for you now - will post them soon.

[shamrocker]

RMS - as it's getting late and we both need to be getting to bed, I'll give you my own personal view on what you need to challenge verbally tomorrow.

 

Please do mention your health situation and that you have had great difficulty in making proper sense of the whole situation with the claim. Make the judge aware that their WS and documents did not arrive until very recently so only then did you realise, after consulting with a friend for advice, that you needed to challenge certain particulars within their WS and claim as a whole. Consequently, you are not as prepared as you could have been, were it not for your own nativity with regards the process.

 

Points to raise:

- Claimant has not stipulated the reasons the account was placed in default.

- Overdraft facility was withdrawn without notice or consultation. My recollection was that the limit was significantly higher than that being claimed. I only discovered that overdraft facility was withdrawn when I went to make a withdrawal.

- Claimant contents that I would be charged fees in accordance with p12 of the terms. I only incurred fees because the overdraft facility was withdrawn. Once the overdraft facility is withdrawn, the agreement is ended and further fees and interest should not be applied. In any event, these charges are unfair penalties and should be refunded with interest.

- Before legal action is taken, a valid Default Notice should be served upon the debtor. I do not recall receiving one from the original creditor. The template provided does not fit the requirement of a valid Default Notice, nor does it act as confirmation that statutory requirements have been fulfilled. The claimant states that the reference made on the 'predecessor's system screen' indicates the issuing of a Default Notice. We have no means of confirming this to be true or factual. An invalid Default Notice is fatal to any claim as the agreement has been ended by the original creditor, thus an opportunity to remedy no longer exists as it must be issued as part of an agreement.

 

I would hope that a sympathetic judge may be swayed by the above - but please do act humble and do not try to overly challenge the opposition (or judge for that matter) - try to get him/her onside. Point out the obvious failing with regards the default notice and keep your fingers crossed that it gets some merit. It's a bit late in the day to be getting too detailed, so I'll leave it at that and wish you all the best.

 

If you do come off on the end of the decision, you may be best advised to take a different approach and then focus in on all the charges. Argue that, not only are they totally unfair, but some shouldn't have been applied after the agreement was ended by the original creditor. Say that you will accept that a balance is due, but you wish to challenge the charges. You might achieve some form of reduction.

 

Best of luck!

 

Sham

[shamrocker]

Any update RMS?

[shamrocker]

Thanks RMS. I'm sorry to hear that it didn't go your way, but it was a bit of a tall order with so little time to prepare. At least you got a chunk knocked off - when the dust settles, you'll take some heart from the fact you stood up for yourself.

 

Did you mention the default notice?

 

Sham

[shamrocker]

Hi RMS... Sorry that I'm only replying now - I read your report not long after you'd posted it today but didn't have time to reply then.

 

I think you could have got them on the default notice if you'd had a bit more time to prepare and challenged it via a witness statement. Something tells me they don't have an original or they'd have produced it. Maybe I'm missing something though, or just wishful thinking.

 

It could have been worse though, and you gave it your best shot - so look on the positive. It's an experience for you, and fair play for standing your ground with the sol.

 

Andyorch can probably advise you better on the repayments end of things. My understanding is that you'll need to contact the claimant and explain your circumstances - see what they're willing to offer. I'd guess they'll not offer you anything as low as you what you have in mind. In any case, assuming the judgement is payment forthwith, the proper way it to apply for a redetermination and the repayments will then be decided by the court. Think I've already touched on this via PM. How about you wait for the judgement paperwork to arrive and then post some details up here. You can then get some advice on the best way forward. Your income position is a little unusual, so it's difficult to say what way things will work out. I'm sure the court will be very sympathetic to your health situation too and when you state your case, the judge would try to come to a fair arrangement.

 

Thanks also for coming back and sharing your experience. Shame we didn't come away with an outright victory, but they didn't get a walkover either!

 

Sham