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Hoist/Cohen Claimform - Santander Overdraft 'debt'***Settled by Mediation ADR***

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Name of the Claimant ? Hoist Portfolio Holding 2 Ltd

Date of issue –3 June 2015 .

Date of def = 4pm Friday 3th July

What is the claim for –

The claim is for the sum of £2XXX.XX in respect of monies owing pursuant to an overdraft facility under account number XXXXXX XXXXXXX

The debt was legally assigned by Santander UK PLC to the claimant and notice has been served.

The defendant has failed to repay overdrawn sums under the terms and conditions of the bank account.

 

The claimant claims

 

1. The sum of £2XXX.XX

2. Interest pursuant to S69 of the county court act 1984 at a rate of 8.00 percent from XX/XX/XX to the date hereof 15 days is the sum of X.XX

3. Daily interest at a rate of .XX

4. Costs

What is the value of the claim? £2XXX.XX

Is the claim for a current or credit/loan account or mobile phone account? Overdraft

When did you enter into the original agreement before or after 2007? Before 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. Debt Purchaser issued claim

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

Did you receive a Default Notice from the original creditor? Yes

Have you been receiving statutory notices headed “Notice of Default sums” – at least once a year ?

Possibly - by way of a statement of arrears but headed 'Loan Account'

and with a different number to the original bank account number shown on the PoC

 

Why did you cease payments:- Financial difficulty - withdrawal of overdraft would have left nothing for food, rent, getting to work etc

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

Yes - advised OC of financial difficulty their action would cause, alleged unlawful 'unfair' treatment

Did you communicate any financial problems to the original creditor

and make any attempt to enter into a debt management plan?

Yes - as above and stated I would make weekly payments of £1o per week by direct credit

but asked for interest and charges to be frozen - they weren't

 

 

Would welcome advice on this although don't hold out much hope...

 

Arrived home from work to find papers on the doormat for a former Santander O/D that Robinson Way have been chasing for a while.

RW have been chasing for Hoist for a while

- trying to get us to phone and offering discounts etc

but as the debt was disputed I did nothing more than tell them this.

Debt is around 5 years old so not SB.

 

Received a letter before claim from Howard Cohen a couple of weeks ago

stating that to stop court action we must contact RW within 10 days of the letter.

This we did, by recorded delivery stating that the debt was disputed and gave details of the dispute

and previous attempts to resolve it.

 

 

Appreciate this might reset SB clock, but at the end of the day we did have an OD

but were more miffed at the way that Santander dealt with us.

 

A bit of history.

Banked quite happily with Abbey for several years.

A change in circumstances led Abbey to offer an OD facility which they later offered to increase.

This was in place for several years and although we went occasionally into the black

we were pretty much using the OD all the time but this was without complaint from Abbey or initially when they took over, Santander.

 

Fast forward to 2009 and redundancy came calling.

Was unemployed for a couple of months and although I got another job it was for almost 25% less money.

Santander pulled the plug on the OD without more than a couple of weeks warning (we hadn't exceeded the limit).

 

 

Not just reduce it over time, cancelling it altogether which would have left us with nothing for rent, food or fuel to get to work.

 

 

I spoke with my branch who said that 'they have done this to a lot of people'

and that they wouldn't negotiate, so opened an account elsewhere to avoid losing our home

and jobs and to still be able to feed the children.

 

Wrote to Santander to claim hardship and that we believed their actions were blatantly 'unfair' and against the Banking Code/BCOBS.

Said I would leave a credit going into the account to reduce the OD and asking to freeze interest and not impose charges.

Got no reply, they just started adding unauthorised OD charges and interest which more than wiped out the credits going in,

so I stopped the payments as the £150 or so that I had paid in was wiped out by the charges and interest and the debt was going up instead of down.

 

Santander did not chase any longer but here is the strange thing

- they have been sending periodic statements for the defaulted amount,

but under a completely different account number and they called it a 'loan' account?

 

 

I never applied to have the OD converted to a loan, nor had any papers to sign to agree repayments for a 'loan'.

Is this at all significant?

The PoC refers to 'overdraft'.

 

I am guessing from advice on other threads that I need to acknowledge the claim on MCOL

and indicate that the claim will be defended in full,

send CPR 31.14 to the solicitor etc.

 

 

I am also guessing that defending OD claims is almost impossible unless SB which this one isn't.

 

 

Am though confused about the implications of the OC apparently converting the account to a loan account with a different A/C number

and sending statements under that number throughout.

 

 

Bizarrely we are still receiving these statements (as recently as a fortnight ago)

several months after the assignment of the alleged debt to Hoist/RW.

 

 

Also Peed off that Howard Cohen told us to contact RW to avoid court action, which we did and they have issued despite this.

 

Apologies for the length of the post but any and all advice would be welcomed.

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Just to let you know, not being ignored, ill advise on this tomorrow.

 

DX is watching the thread and I believe Andyorch might also be along at some point too.


 

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OK - read that thread and understand that we need to get the CPR request off and then defend based on what does or does not arrive.

 

Couple of questions.

 

 

As this is a joint account and both of us have received papers,

do we each need to register with MCOL and acknowledge?

 

 

Will we then each need to submit a defence or is a defence from one party sufficient?

 

Thanks

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if you have each received individual claimforms

you each need to complete the full process

 

 

 

 

dx


please don't hit Quote...just type we know what we said earlier..

 

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claims acknowledged in both names and CPR request sent off in respect of both parties.

 

 

As expected, no reply.

 

 

Need to get defence in tomorrow or Thursday latest.

I have seen plenty of other cases where a holding defence has been submitted, so that is OK,

but how much or how little detail relevant to the account needs to be provided?

Defence will be filed for both me and Mrs Me

 

I think we may have received a Notice of Assignment, so I can't really include the fact that I didn't receive one.

 

The claimant in the LBA said that we must contact RW within X days of their letter OR a claim would be issued, which we did but they issued a claim anyway - is that a breach of Pre Action Conduct?

 

We wrote to Santander after they had withdrawn the (agreed) overdraft at short notice and had added charges and interest complaining about unfair treatment

and they ceased collection activity until RW started writing 5 years later.

We had left £10 a week going in but the debt kept going above this due to charges and interest.

 

The annual statement from Santander was headed 'Loan Account' and with a completely different number throughout.

The claim has been issued under the original Bank Account Number.

Is it right to do this

- call it a loan but then revert it to an overdraft for the purpose of litigation

- or were we entitled to think that in the light of the complaint Santander had converted the balance to a loan but never agreed terms?

 

Would appreciate guidance on what to include in the defence based on the above or should it be kept simple

- Not denied that there was an account with overdraft facility,

Claimant has not responded to CPR so unable to file a detailed defence?

 

Thanks

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don't think the statement name matters

the fact is the account is mostly/all bnk charges

so file the holding defence that mentions that line.

 

 

try these but ADAPT to your circs,

 

 

Heres a more detailed version of an overdraft defence...obviously you would have to edit to suit your particulars....

.

 

1. It is admitted with regards to the Defendant entering into an Agreement referred to in the Particulars of Claim ('the Agreement') with the original creditor Lloydsicon TSB Bank.

.

2. The defendant denies that the account exceeded the agreed overdraft limit due to overdrawing of funds but is as a result of unfair and extortionate bank charges/penalties being applied to the account.

.

3. I refute the claimants claim is owed or payable. The amount claimed is comprised of amongst others default penalties/charges levied on the account for alleged late, missed 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 Abbeyicon National PLC and others (2009). I will contend at trial that such charges are unfair in their entirety.

.

4. 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 crediticon Act 1974. The Claimant has yet to provide a copy of the Notice of Assignment its claim relies upon.

.

5. The claimant is denied from added section 69 interesticon within the total claimed that as yet to be decided at the courts discretion.

.

6. As per Civil Procedureicon 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.

.

7. On receipt of this claim I requested documentation by way of a CPR 31.14 request dated 4 March 2014 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.

.

..............

 

or

Particulars of Claim

1.The claim is for the sum of 2470.56 in respect of monies owing pursuant to an overdraft facility under account number XXXXXX XXXXXXXXXX.

2.The debt was legally assigned by Santander UK Plc to the claimant and notice has been served.

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

 

The Claimant claims:

The sum of 2470.56 Interest pursuant to s69 of the county courticon Act 1984 at a rate of 8.00 percent from the 7/04/2015 to the date hereof 14 days is the sum of 7.58Daily interest at the rate of .54

Costs

Defence

The Defendant contends that the particulars of the 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 once having had banking facilities with the original creditor Santander Bank. It is denied that I am indebted for any alleged balance claimed.

2. Paragraph 2 is denied.I am not aware or ever receiving 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 crediticon Act 1974. The Claimant has yet to provide a copy of the Notice of Assignment its claim relies upon.

3. Paragraph 3 is denied. The Original Creditor has never served notice pursuant to 76(1) and 98(1) of the CCA1974

Any alleged amount claimed could only consist 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 Abbeyicon National PLC and others (2009). I will contend at trial that such charges are unfair in their entirety.

4. As per Civil Procedureicon 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/overdraft 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 all excessive charging/fees and show how the Claimant has reached the amount claimed.

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

(e) 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 April 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

nicked from Andyorch


please don't hit Quote...just type we know what we said earlier..

 

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Thanks DX

 

The account had an amount of charges and interest on charges, but was not 'mainly' due to charges. The agreed OD was around £2400 and we were working within that but the bank reduced it to zero with a week's notice. We paid off around £100 after we moved accounts, but with charges and interest Santander defaulted the account at around £2800. The claim including solicitors costs and filing fee is a shade over £3k.

 

Will have to try and adapt one of your suggestions

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Legally you should be allowed 28 days to make your proposals for repayment...before they can terminate /recall the overdraft.

 

Post your intended defence here first before submitting.....so it can be checked.

 

Regards

Andy


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Thanks Andy

 

The proposed defence:-

 

Particulars of Claim

 

1.The claim is for the sum of XXXX.XX in respect of monies owing pursuant to an overdraft facility under account number XXXXXX XXXXXXXXXX.

2.The debt was legally assigned by Santander UK PLC to the claimant and notice has been served.

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

 

The Claimant claims:

The sum of XXXX.XX

Interest pursuant to s69 of the county courticon Act 1984 at a rate of 8.00 percent from the XX/XX/XXXX to the date hereof 15 days is the sum of X.XX. Daily interest at the rate of .XX

Costs

Defence

The Defendant contends that the particulars of the 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 once having had banking facilities with the original creditor Santander Bank. It is denied that I am indebted for the alleged balance claimed.

 

2. Paragraph 2 is denied. I am not aware or ever receiving any Notice of Assignment pursuant to the Law of 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.To my knowledge Santander has never served me a notice pursuant to 76(1) and 98(1) of the CCA1974

 

Any alleged amount claimed could only consist substantially 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/overdraft 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 all excessive charging/fees and show how the Claimant has reached the amount claimed.

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

(e) 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 XX June 2015 namely the Overdraft Agreement, Terms and Conditions relevant at the time of inception for the agreed overdraft and Termination Demand Notice inferred by the Claimant's Particulars of Claim.

 

The Claimant has failed to respond or 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.

 

 

Is it worth including after Point 1 the fact that the account was in dispute with the Original Creditor,

that I had no contact after that dispute was raised etc - or should the defence at this stage not introduce too much detail?

 

Thanks

Edited by Andyorch
Tweaked.

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Would somebody please be able to check the defence above? I need to file this before this afternoon

 

Thanks

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Just a little tweak on 3 BigMe...

 

Regards

 

Andy

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MCOL not allowing me to submit defences 'for one or more technical reasons'

 

Phoned MCOL and they have suggested I email defences across - hope that works OK. They have said I have until 6th July :|

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often the case with mcol site

 

 

MCOL is only one way of responding to a claim.

 

 

If you are having problems logging in, or would prefer not to use MCOL,

you can fax, email or post your response to the Court instead.

 

 

If you send your response by e mail please send it to MCOL@hmcts.gsi.gov.uk and ensure you quote “Claim response” in the subject field.

 

 

.

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please don't hit Quote...just type we know what we said earlier..

 

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Thanks DX - I never knew that and was panicking when I kept getting the 'Error' message

 

The lady on the phone gave me this address to submit the defence - ccbcdefendants at hmcts etc with 'Defence' and 'Claim Number' in the subject field, so presumably this saves time-critical docs getting buried amongst general enquiries.

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Hi BigMe,

 

 

Good luck I am in the process of defending a very similar claim to you.

 

 

I hope it works out for you and if you'd like to discuss further feel free to message me.

 

 

best regards,

 

 

Dave

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Hi BigMe,

 

 

Good luck I am in the process of defending a very similar claim to you.

 

 

I hope it works out for you and if you'd like to discuss further feel free to message me.

 

 

best regards,

 

 

Dave

 

Lets just keep everything on the thread thank you.

 

Regards

 

Andy


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Right - an update

 

Got an acknowledgement of filing the defence from the court, and have heard nothing further until......I came home tonight and found a Notice of Proposed Allocation to the Small Claims Track and a Directions Questionnaire.

 

Problem is that it is dated 5th August and says that I should return it to the court by 24th August - yesterday!

 

Also, have only received one - my OH hasn't received one in her name - is that usual for co-defendants?

 

Nothing received from claimants solicitor from the CPR request

 

Obviously need to speak to the court in the morning but is this usual? Will a judge simply rubber stamp a CCJ if I didn't get it in on time - whatever the reason?

 

Does this mean that the claim wasn't stayed?

 

The Notice says:-

 

1. This is now a defended claim

 

The defendant has filed a defence, a copy of which is enclosed (with a line through that bit)

 

2. It appears that this case is suitable for allocation to the Small Claims Track

 

3 You must, by 24th August 2015 complete the Small Claims Directions Questionnaire etc

 

And serve copies on all other parties

 

So - in the hope that the court allow me to file this late, do I have to fll in the forms, tick the box for mediation and then copy this and sent it to the claimants solicitor too?

 

Help welcomed!

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Hi BM

 

Is your claim one claim form with both names on or separate claim forms different claim numbers?

 

Regards

 

Andy


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Separate claim forms but with the same claim number Andy. The Notice now received is addressed solely to me but in the Defendant box it states Defendant Mr BigMe & 1 other

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Thats okay...there is only one form to complete that covers both Defendants.

 

Simple to complete...yes to mediation ...yes to Small claims track...the rest is simple tick boxes which are self explanatory.Send it back to the court stated tomorrow and a copy to the claimants Solicitor...I would write across the top " Received 24th August ".

 

Regards

 

Andy


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Thanks Andy - will do that

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Update...

 

Discovered that both Defendants DO need to file a DQ

- when we received an Order from the Court

and giving us only a few days to do so!

 

Upshot was that we had the mediation a few days ago.

Mrs Me was dead set against going to court and after reading of one or two Hoist successes at court recently

we decided that making an offer was the way to go.

 

 

We had never actually disputed that we had an outstanding overdraft

- just that the amount had been significantly inflated by charges and interest,

and the fact that the OD was pulled with no chance of negotiating a gradual repayment.

 

The mediation itself was relatively painless and the mediator was pretty helpful in steering us towards what would and would not work

- in his opinion having mediated on similar cases

- but without actually breaching the neutrality of the mediation.

 

 

I had worked out a figure based on what we 'actually' owed the bank at the time and pitched for slightly more.

The first offer was rejected and they said the max they could accept was 75% of the claim,

which to be honest was more than acceptable as it wiped off all of the court costs, charges and interest

and left the balance significantly less than we owed Santander originally.

 

 

The level of instalments was also accepted and this was less than we thought we would have to pay - didn't even need to provide an I&E.

 

Cohen had provided a bunch of paperwork prior to the mediation, but not the actual OD agreement,

although they did trawl up the application for the account from almost 20 years ago.

I thought there was enough there that an average Judge would probably side with Hoist if it went to court.

 

So - we could have gone to trial and won or lost depending on the Judge

but at least this way we didn't have to take time off work and lose pay

then go through the hassle of making an agreement based on the Court's opinion of what was affordable.

 

Thanks all for help given.

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I would regard that as a victory then BigMe.....mediation does have its uses....providing the claimant is willing to participate.Litigation is not everyone's cup of tea and if you can avoid the hassle ...adjust the figure to a true reflection of any indebtedness avoid court costs and CCJ ........then mediation is a perfect process.Its just a pity that it cant happen pre litigation and save everyone time...money and stress.

 

Any way well done and I'm delighted that you have managed to resolve this to your satisfaction.

 

I will amend your thread title to reflect the outcome.

 

Regards

 

Andy


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well done and thanks for updating us - many don't bother.

 

 

dx


please don't hit Quote...just type we know what we said earlier..

 

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