Need to file Defence to claim by Hoist for bank charges on old A&L account

[Lucalinc1425]

Hi

 

Im new to the forum and need to file a defence to claim form today by 4pm I believe.

 

I am going to send CPR31 letter but could someone point me in the direction of a Defence to file. It is not a CCA claim but just for unpaid item fees etc and it is not SB. I have read the Burnett v Lloyds case.

 

Thanks and so sorry to be a pain.

[Lucalinc1425]

So nervous )) - not slept all night as kept putting it off!

[BankFodder]

Well you had better let us know what it is all about, what you want to say in your defence and tell us what the claim form says.

 

Later on you might want to explain to us why you have left it to the last minute.

[Lucalinc1425]

Hi BankFodder

 

Basically the Claims Form is very short asking for 1700.00 for monies owed from overdraft facility and that debt has been assigned to Hoist. This sum will be about half or more made up of bank charges and I think its from around Dec 2009 when I got into trouble financially and eventually the account was closed - it shows as a default on my credit reference filing. I remember very little to be honest but a couple of occasions I offered to pay the money part but not the charges if thats makes sense.

 

I have no paperwork so cannot say much more. I want to defend on basis the charges element is unfair under UCTR - or to be honest I might have just read the forum wrong - Ive been on internet since about 2am until now.

 

Ive left it so late because I am simply stupid and thought it would go away!!

[Lucalinc1425]

Thinking I should just agree to pay in instalments if they would accept and then get some sleep.

[BankFodder]

Thank you.

So I understand that the claim refers to a current account which you held with Alliance and Leicester.

 

Some of it relates to an overdraft and some of it relates to charges which were incurred because they bounced cheques or direct debits. Is that correct?

 

Were the charges incurred because they refused payments? Or were the charges incurred because they made the payments and then applied charges for going over your limit?

 

I understand that about half of the sum claimed represents money which you actually spent – and the other half represents charges. Is that correct?.

 

How old were you when you opened the account? How long did you have the account? Presumably the account is closed, – when was it closed?

 

Have you got any of the paperwork relating to the account?

Edited March 31, 2015 by Andyorch
CCA request removed not appliicable

[BankFodder]

Also please complete the questions here - http://www.consumeractiongroup.co.uk/forum/showthread.php?419198-You-have-received-a-Claim-What-you-need-to-do.-**UPDATED-December-2014

and post the responses for us.

[AndyOrch]

The following CPR 31.14 should be used in conjunction with a current account claim...

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?387483-LEGAL-CPR-31.14-Request-when-Claim-is-being-made-for-a-Current-Account

 

Regards

 

Andy

[Lucalinc1425]

Name of the Claimant ? HOIST POERTFOLIO

 

Date of issue – 19 Feb but obtained 7 day extension for Defence already from Howard Cohen Co.

 

 

What is the claim for – the reason they have issued the claim? Claim is for sum of 1700.00 in respect of monies owed pursuant to overdraft facility under account number xxxxxxxxxxxxx. Debt was legally assigned by Santander to the Claimant and notice has been served. The Defendant has failed to pay the sums owing under the terms and conditions of the bank account.

 

What is the value of the claim? 1700.00

 

Is the claim for a current account (Overdraft) or credit/loan account or mobile phone account? Current account overdraft.

 

When did you enter into the original agreement before or after 2007? Not sure at all but think was after 2007

 

Has the claim been issued by the original creditor or was the account assigned and it is the Debt purchaser who has issued the claim? Assigned to Hoist

 

Were you aware the account had been assigned – did you receive a Notice of Assignment? Cant honestly remember

 

Did you receive a Default Notice from the original creditor? Cant remember

 

Have you been receiving statutory notices headed “Notice of Default sums” – at least once a year ? Not sure

 

Why did you cease payments? Had no money and couldnt afford to get back in the black and charges kept mounting

 

What was the date of your last payment? Not sure

 

Was there a dispute with the original creditor that remains unresolved? Just the bank charges

 

Did you communicate any financial problems to the original creditor and make any attempt to enter into a debt managementicon plan? May have said on telephone that had money problems

 

 

 

Hope this is ok and thanks guys.

[AndyOrch]

Date of issue – 19 Feb but obtained 7 day extension for Defence already from Howard Cohen Co.

 

[Lucalinc1425]

I think due date for defence was 24 March and forgot so on 24 March Cohen agreed to a 7 day extension

[Lucalinc1425]

I know ive made a real hash of this im afraid and sorry for making things so difficult

[AndyOrch]

Have you registered to use the Gov gateway MCOL...how did you acknowledge the claim?

[Lucalinc1425]

Yes registered on Gateway and have all access details - I did acknowledgement on there

[AndyOrch]

Login now and see if it will let you submit a defence......then post back here.

[AndyOrch]

1.Claim is for sum of 1700.00 in respect of monies owed pursuant to overdraft facility under account number xxxxxxxxxxxxx.

2.Debt was legally assigned by Santander to the Claimant and notice has been served.

3.The Defendant has failed to pay the sums owing under the terms and conditions of the bank account.

 

The above particular...is that complete...verbatim.... less any identifiable data?

 

######Suggested Defence#######

 

The Defendant contends that the particulars of claim are vague and generic in nature. The Defendant accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.

 

1. It is admitted with regards to the Defendant having had banking facilities with the original creditor Santander Bank.

 

2.Paragraph 2 is denied.I am not aware or ever received any Notice of Assignment pursuant to the Law and Property Act 1925. It is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act and Section 82A of the Consumer Credit Act 1974. The Claimant has yet to provide a copy of the Notice of Assignment its claim relies upon.

 

3 Paragraph 3 is denied. I refute the claimants claim is owed or payable. The amount claimed consists in the main of default penalties/charges levied on the account for alleged late, rejected or over limit payments. The court will be aware that these charge types and the recoverability thereof have been judicially declared to be susceptible to assessments of fairness under the Unfair Terms in Consumer Contracts Regulations 1999 The Office of Fair Trading v Abbey National PLC and others (2009). I will contend at trial that such charges are unfair in their entirety.

 

4. As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.

 

The claimant is also put to strict proof to:-.

 

(a) Provide a copy agreement/facility arrangement along with the Terms and conditions at inception, that this claim is based on.

(b) Provide a copy of the Notice served under 76(1) and 98(1) of the CCA1974 Demand /Recall Notice and Notice of Assignment.

© Provide a breakdown of their excessive charging/fees levied to the account with justification.

(d) Show how the Claimant has reached the amount claimed.

(e) Show how the Claimant has the legal right, either under statute or equity to issue a claim.

(f) Show how they have complied with sections III & IV of Practice Direction - Pre-action Conduct.

 

5. On receipt of this claim I requested documentation by way of a CPR 31.14 request dated 31st March 2015 namely the Agreement and Termination Demand Notice referred to in the claimants Particulars of Claim. The Claimant has failed to comply with this request.

 

By reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

 

Regards

 

Andy

[Lucalinc1425]

Yes I can start the Defence - am I better just paying it?

[Lucalinc1425]

Yes that is word for word

[AndyOrch]

Its your choice....if you agree that you are indebted for that amount.

[Lucalinc1425]

Ideally I am happy to agree al monies less the bank charges (this has been me stance since day one).

[AndyOrch]

Proposed defence now in post #16...you need to get the CPR 31.14 away today should you wish to defend this claim.

 

Regards

 

Andy

[Lucalinc1425]

I have filed the Defence in line with what you have suggested above. I would like to say a big thank you for assisting me Andyorch.

[AndyOrch]

Next job.......

 

 

 

http://www.consumeractiongroup.co.uk...urrent-Account

[Lucalinc1425]

Thank you - I am just completing this letter now and will fire it off.