Claimform from Hoist / Cohen for Santander Loan

[djc1]

Ford, In the Terms And Conditions they sent to me in response to my request for a copy of the agreement under the (CCA) it says,

 

In The Payments Section.

 

Your Payments.

1.a If you have taken a loan for payment protection insurance (PPI) you agree to pay us the total amount payable for the loan and the PPI loan shown on the Credit Agreement by monthly instalments shown and on the dates shown or on other dates which we may notify to you, having regard to what is convenient to you.

 

b. If you have not taken Payment Protection Insurance, you agree to pay us the total amount payable shown in the Credit Agreement by monthly instalments shown and on the dates shown (or on other dates we may notify to you, (having regard to what is convenient to you).

 

c. If you have taken an Abbey staff loan, you agree to authorise your employer to make payments due from you under the Credit Agreement direct to us by deduction from your wages (having regard to the cut-off date which may apply in certain circumstances). This includes salary and profit share or any other payments due from your employer. We may agree an alternative arrangement that is acceptable to us.

 

Application Of Payments.

 

2.a Payments received by us under this agreement will be applied first towards the intrest due and then towards repayment of the loan(s) and the PPI loan (at our discretion) if applicable.

 

b. If any payment received by us is less than is needed to cover the monthly instalments due from you under this Agreement and any sums due from you under any other agreements which you have with us, we shall decide which of your accounts to credit with the payment, unless you tell us what you want us to do.

In The Default Section.

 

3.1 If you fail to pay any monthly instalments or part of it on your due date (or within 14 days of that date) or if you break this Agreement in some other way this is what will happen.

 

(i) The unpaid balance of the total amount you must repay shown on the credit agreement (less the rebate, if any to which you are entitled) will become due and payable to us, and

(ii) we shall be entitled to demand payment of the unpaid balance(s) less any rebate to which you are entitled but,

(iii) we shall have to give you at least 7 days notice in writing to give you a chancr to put things right if this can be done or to pay us compensation if not. This is called a default notice,

(iv) we may charge you interest on the amount overdue at the same rate as interest on the loan from the date of the default notice until the date it is paid.

(v) in addition we will charge your account with our costs of enforcing our rights under this Agreement including tracing costs, collection agency costs and legal costs incurred. Any such costs charged by us will become due and payable immedately and will not be subject to the terms of any default notice issued to you.

 

3.2 We may change the default charges referred to in the Credit Agreement to reflect any changes in our costs. If we increase our charges we will give you 30 days written notice before the change takes effect.

 

In The Your Instalments Section.

 

8.a Interest is calculated for the whole of the loan term on the date this Agreement is made and is charged to your account on that date. Your monthly instalments are made up partly of loan repayments (or capital) and partly of interest. They will remain the same.

 

b. Each monthly instalment contains more intrest (and less capital) than the next so that when payments are made more interest is paid off at the start of your loan term than at the end of it.

 

c, We use a formula specified by the Consumer Credit (Early Settlement) Regulations 2004 to calculate exactly how much interest each monthly instalment contains.

 

The Term Breached As Stated In The Default Notice

 

Re: Your Personal Loan Agreement With Santander UK plc.

PROVISION OF AGREEMENT BREACHED: The clause which requires you to make payments at the time stated in the agreement.

NATURE OF BREACH: Failure to pay the overdue amount.

ACTION REQUIRED TO REMEDY: Payment of the overdue amount of £ XXXX.XX to us within 14 days of service of this notice.

 

The Specific Terms The Claimant Refers To In Support In Their Wit Statement

 

Point 4 in their Wit statement says,

The Defendant made use of the credit facilities provided under the Agreement. Under the financial Terms and Conditions of the Agreement, the Defendant was contractually obliged to make 96 monthly payments of £xxx.xx. There is now exhibited hereto marked XXXXXX a copy of statement provided by the Claimant's predecessor in title.

 

Point 6 in their Wit statement says,

On xx January 2010, pursuant to section 87(1) of the Consumer Credit Act 1974 (the Act), a Default Notice was served upon the Defendant requiring payment of the arrears to be made, the Defendant having failed to make payment in accordance with the terms of the Agreement. The Defendant failed to comply with the same and therefore the Agreement was terminated. There is now exhibited hereto marked xxxxxx a reconstituted copy of the said Notice.

 

These are the only paragraphs that mention anything about the terms in their Wit Statement.

[Guest]

para 3.1 seems pertinent, which seems to be the breach they rely on in the default notice, and then the claim form itself as the reason for termination.

is it correct that the amount stated in the dn (in january 2010) is re the arrears, and not the full outstanding amount of the whole loan?

 

if there are no terms in the agreement very similar to that in BMW, then they may not be able to rely on that case.

but, as posted before, generally, the full outstanding amount of a normal personal loan doesnt become due until the end of its term (even if no payment instalments), unless it is terminated prior. (unlike a credit card where, once there is a claimable breach, the full amount then becomes due immediately.

 

they then sent a termination notice on 18/2/10 (your post #13). as per my prev post, then it may not be deemed barred. up to the J on the day. seems then it boils down to whether the J takes it from the breach relied on by the claimant for the termination, or the subsequent termination notice in february.

 

tricky though. see what andy etc say.

[djc1]

Hi Ford,

Yes it is correct that the amount stated in the dn (in january 2010) is re the arrears,would it be helpful if I typed up what it says in the DN ?

[Guest]

no need atm, unless you think that the dn was not compliant.

seeing as they claim the lack of payments, then dn, in their claim. then cld try argue is re from that breach rather than the term'n notice.

whereas if they had just ended the agreement of their own initiative without there being any prior breach, then they cld argue it from the then required term'n notice.

and trying to distinguish BMW.

you are in small claims? if so, any poss costs consequences may not be so much of an issue.

 

see what the guys say though.

[djc1]

Just going over my original docs and the ones they have in their wit statement there are several differences,

 

On their copy of the DN

my name is in a different format ie Mr aaaaa b ccccc and not Mr a b ccccc.

The address they sent it to is an address i have never lived at

The amounts are different.

 

On the copy of the alleged Notice of Assignment from Santander, They have the same address that I have never lived at, That would be the reason I never got one.

 

On the copy of the alleged confirmation of Assignment from Hoist, They have the same address that I have never lived at, That would be the reason I never got one.

[dx100uk]

urm..not good on that DN

that's pants.

[djc1]

Pants for them, I hope dx

[dx100uk]

of course

there nothing there that proves its anything to do with your debt

how crap is that.

[Guest]

djc

looking back.

para 3.1 says that the 'the unpaid balance of the total amount shown on the agreement' becomes due if no payments.

maybe then a shout re bar, arguing that as the cause. if no BMW like termination term. and the required dn being a statutory admin requirement re the breach on the creditor?

[djc1]

Just a quick update folks, The big day tomorrow in court, will let you know what happens fingers crossed.

[AndyOrch]

Best of luck and fingers crossed djc...please update irrespective of the outcome.

 

Regards

 

Andy

[djc1]

Well folks just back from court, I lost it all went so fast I had trouble keeping up with what was going on.

 

Quick overview of what happened,

 

Arrived early and was approached by the claimants representave,

he informed me that they would be arguing that the Limitation period started from the Default Notice, #and gave me a copy of the BMW V Hart Case,

 

 

He also gave a copy to the court usher/ cleark who commented Too Late,

The representave also offerd me a last chance to negotiate a settlement before we went before the Judge.

I asked how much would they be looking for he said most of the claim so i declined.

 

They stated their case that the debt was not SB, and made several references to the BMW V Hart case,

in particular point 7, and point 17, in the case.

 

I argued that the BMW V Hart case was irreverent because it was not regulated by the CCA,

and that the Limitation period for simple contract debts starts running from the cause of action

which was when I had fallen behind with payments.

 

I also pointed out the discrepancies in their copy of the Default Notice,

Ie the wrong address and wrong figures of money owed, that was put down to an admin mistake.

 

The Judge then said the whole amount due was to be paid in 14 days, and asked if this was possible,

to which I said no,

the Judge then advised me to contact HC solicitors and arrange a re payment plan or the court can arrange one.

 

The Judge did disallow a few of their cost claims and reduced the rate that they could claim interest to 6%

because she beleived their was no malice intended in my defence.

 

I feel as though i have been had here,

not shure if there is anything i can do about it,

but I do hope that my whole experience can be of some help to others on this site,

I would like to thank all for your advice and direction through out this saga,

 

 

Donation to the site will be made on friday.

Thank You.

[AndyOrch]

BMW V Hart Case is irrelevant to your type of agreement...it was HP and had a clause contained in its T&Cs...I assume the Judge was pushed for time during this pleasant weather.

 

Dont contact the claimant to discuss a payment plan...submit the N245 and get the court to set it.

 

Many thanks for the update DJC.

 

Andy

[djc1]

Andy, Ref the N245 I take it you are talking about getting a court order set aside ?

[dx100uk]

no that N244 setaside

N245 is to vary the order

[Guest]

thanks for updating djc, bad result. as mentioned, it wld be tricky. also as the dn was only re the arrears. did you refer to that contract term mentioned.

 

yes, to vary to an instalment order. unless you want to try appeal?