Santander withholding my money - suspected fraud - **SETTLED full amount+Court Fee+Compo**

[bradybunch]

Thanks BankFodder. I will upload the version I sent during the course of the day

[BankFodder]

Still waiting for this please.  It's now Monday.

 

I think at some point you will have to supply a reply to this defence but best we leave it as late as possible.  Hopefully the court will take no notice of the request to strike your claim out in which case we can leave a reply until it comes to disclosure.

 

there are two important points here in your favour in respect of their defence.

 

I only looked at it on a small screen so I may have missed something but it seems to me that they have made no mention of your reference to the Proceeds of Crime Act.

 

And also even though they have identified COBS  which you did not refer to in your claim they have failed to identify BCOBS which you did refer to and this is rather funny.

 

The fact that they seem to be unaware of BCOBS suggests that they as a bank are unaware of the regulations which control the way that they are meant to conduct business with their customers.

This is an embarrassment for them and of course we will refer to it in your reply.

 

The failure to refer to the proceeds of crime act is extremely significant.

 When pleading defences there is a  general rule that whatever is not denied  what is admitted. is 

 In this defence, not only have they failed to deny that they haven't complied with the proceeds of crime act  but they haven't even referred to it at all.

 

This is very strong evidence that they have not complied with the statutory requirements and that they know it and they prefer  to gloss over it hoping that it will not be picked up by you. 

 We will have to highlight this at some point and we will have to put them to proof that they have complied with the proceeds of crime act.

 

if they have not complied with all of their statutory duties then this is clearly unfair treatment and your case is proved slam dunk.

Also it would be a serious statutory breach that should be brought to the attention of the authorities.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[bradybunch]

Hello Team,

 

I received a letter from the court yesterday which was a bit confusing. The Judge seems to be starting the process all over again.

newcourtorder2.pdf newcourtorder3.pdf newcourtorder1.pdf

[AndyOrch]

Standard procedure...have you not read any other threads issuing a court claim and the procedure ? the claim has now been allocated (N157 Notice of Allocation)

 

Follow the directions and comply by the dates states...you must pay the hearing fee by the date (14th Dec 2021) stated otherwise the claim will be struck out.

 

 

[bradybunch]

i am just confused by some of things on the document

 

1. pay trial fee or provide properly completed application

2. The case is suitable for mediation.

 

We have already done both. I have re/written the Letter of Claim and we have already been through mediation with no success.

 

do I just disregard and go ahead to make the payment or do I have to go through mediation process again? Thanks for your support.

[AndyOrch]

Yes you have to pay a hearing fee as claimant or complete an exemption notice if you qualify for exemption.

 

Disregard the offer of mediation.....the Directions are the most important part of the notice and what you must prepare next in preparation for the court hearing.( Preparing a witness statement and evidence in support of your claim).

[AndyOrch]

May be of interest to you......

 

 

[bradybunch]

Hi Team,

 

Santander sent me an email yesterday, asking to repeat the mediation process all over again....

         

Quote

 

 "Dear Sirs

We refer to the above claim, which has recently been allocated to the small claims track after the parties were ordered to file amended pleadings.  Santander UK plc is the defendant to the claim.

 

We indicated on our Directions Questionnaire when originally filed that we are amendable to attend a small claims mediation.  In an allocation order dated 3 September 2021, the court indicated to both parties that they should consider mediation. 

 

The purpose of this email is to confirm that Santander remains willing to attend a mediation.  The claimant has been copied into this email and is asked to confirm whether he is also prepared to mediate.  If he confirms that he is, please could the small claims mediation service arrange this?"

 

 

 

we have already been through mediation but that was prior to allocation and I am not sure what they intend to achieve with this.

[BankFodder]

Sorry but can you remind me of what has happened on the previous mediation.

I don't remember this part all. I do remember that the judge threatened to strike out your claim and required an amended particulars to be filed and naturally they then had an opportunity to file an amended defence – which they did but without referring to specific allegations in your defence.

Can you take us through it again please very briefly.

[bradybunch]

We went through mediation before the case was allocated. Santander maintained they did the right thing by withholding the balance and I held my ground. This was quite early in the life of the case.

 

references to mediation are on page 4 of this thread from post #79

[BankFodder]

Thanks. I'll have a look and get back to you.

I think you will have to agree to the mediation – but I think that it gives us an opportunity to send a pretty pointed letter so stand by

[AndyOrch]

This is standard mediation after allocation....they are responding to the N157 Directions (your upload post#153 paragraph 4/5) Its your choice if you wish to participate...but if you dont the court will take it into consideration should you lose the claim and when/if awarding costs to the defendant.

[BankFodder]

Also, please can you remind me – are they holding money of yours? If so how much?

I see that at the last mediation they offered you £690 – what was that about?

I'm sorry to ask you to go through this again but could you just let us know whether you are out of pocket, whether you have any markers against you on your credit file or CIFAS – anywhere else and what other losses or disadvantages or prejudices you have suffered?

[bradybunch]

Yes they are holding about £4800. they offered to pay £690 being the amount they are satisfied that I can prove ownership of. There is no marker against my credit file or CIFAS against my name. I did an SAR already. I am out of pocket and have had to periodically rely on friend/family to pay some bills.

[BankFodder]

This letter below is just a draft. Maybe you could provide me a link to their defence again so that I can refresh my memory completely.

If you read the letter, you will get the idea that I have in mind. Let me know what you think. See if you are agreeable and if you want to suggest any amendments.

 

Quote

Dear XXX

Claim reference number XXX – mediation

I'm writing to confirm that I am amenable to an attempt at mediation although I do not understand how the defendant intends to repair their statutory breach by means of a mediated settlement.

However I should point out that the last and failed mediation attempt, the defendants merely offered me a token sum of about £620 and made no proposal in terms of unlocking my account or returning my money to me – which was about £4800 – and no discussion of the interest on that sum which would be due to me.
There was also no proposal made as to a realistic figure for compensation in respect of the grave inconvenience to which I have been put by the defendants.

Since the last failed mediation, an amended particulars of claim has been filed – pursuant to a court order. An amended defence has been filed and it is notable that the points made in my particulars of claim have not been addressed.
In particular, I pointed out various statutory breaches which have been committed by the defendant including a breach of the BCOBS regulations of which the defendant appear even now to be unaware.
I also referred to the defendants breach of the Proceeds of Crime Act and their duty under that act to inform the NCA.
I understand that it is an established principle that where an allegation is not denied it is taken to be admitted.
By omitting any reference to these allegations in their defence, it seems that the defendant has been at pains to avoid the issues raised, and in fact these amount to admissions.

I also notice that in the amended defence, the defendant refers to the balance of the account of about £620 and fails to refer to the remainder of my money which as I have mentioned above is about £4800.

I am happy to discuss a way forward at mediation but to avoid wasting anybody's time I shall state my position now that I will require the defendant to address all of the points made in my particulars of claim – either at mediation or by means of a formal amendment to the defence. I shall also require them to release my £4800 to explain where my money is at the moment and why it has not been referred to in their defence and to make a suitable proposal to repay interest on this sum.
Please note that I will not be prepared to accept interest calculated at a simple rate. I shall also expect a realistic proposal of compensation.

 

On the matter of addressing the points in my particulars of claim, it is clear that if this matter goes to trial that the defendant will have to do this anyway so they may as well get it over with now.

If the defendant feels that they cannot engage in a mediation process along these lines then they should notify the court and myself that they have changed their mind, that they are refusing mediation and they prefer to go directly to a hearing.

However, once again, I am very happy to try and achieve a mediated settlement but clearly it will require pragmatism, transparency and goodwill on the part of the defendant.

Yours faithfully

 

[Manxman in exile]

Paras 14.10 and 14.11 of Santander's amended defence state quite clearly that the "remaining balance" on the claimant's account is only in the region of £620.  Presumably this means that >£3k (the difference between the amount claimed and this "remaining balance") has been transferred out of the account - or has otherwise disappeared.  But so far as I can tell, Santander do not explain where that money has gone.  (If they had transferred it into some sort of control account pending the outcome of any investigation, I would have expected them to mention this in their defence so that the court would be able to follow the trail of the money).

 

Does the OP know why there is a discrepancy between the amount they say was in the account, and the amount Santander says is now in there?

[bradybunch]

They transferred into a "suspense/control" account. 

[BankFodder]

I've now amended the suggested letter to refer to the missing money. I agree they probably have transferred it to a suspense account but it doesn't seem to have been referred to in their defence – and it must be.

These people are trying to dodge issues and it seems clear to me that they don't seem to be particular confident of their position otherwise they would have come out and said it

[bradybunch]

On 12/02/2021 at 13:45, bradybunch said:

I havent submitted the POC. I need to do that now, with the bundle. 

 

attached the Bank's defence

Defence (final) (2).pdf 141.01 kB · 20 downloads

this is the bank's defence #22

[BankFodder]

Sorry but is the above document the amended defence? It seems to me that that might be the defence that they submitted to your original particulars of claim.

 

[bradybunch]

On 19/08/2021 at 00:14, bradybunch said:

Hi Team, a brief update. The court ordered Santander to respond to the amended POC. I have attached their response here.Amended Defence FINAL (for service).docx

This is their amended defence. 

[BankFodder]

Sorry to be a drag but please could you also post up the amended particulars. I'm very sorry but the thread is so long and I don't have the time to comb through it.

Thanks

[AndyOrch]

On 16/07/2021 at 09:08, bradybunch said:

I have gone through the document and  BB_particularsofClaim_1607202.docx

 

[BankFodder]

Okay I have been through the amended particulars of claim and also the amended defence.
I have made a couple of further amendments and I think that the letter I suggested above probably covers all the bases.

If you are happy with it then send it and let us know that you have sent it. If you aren't happy with it then please will you suggest your modifications or what you prefer not to put it and then we can work out another version.
However I think that we should see the final completed version before you send it off.

If you do send the letter as I have suggested it, then I think that you have made your position extremely clear.
I think in terms of the exchange of documentation, things are working out rather well. Because of the rather poor particulars of claim which you filed first of all, you drew out a fairly detailed defence which gave lots of hints which we were able to capitalise upon when you are eventually complied with the court order to file an amended particulars of claim.
That has given you a big advantage.
Because of the original failed mediation, we also have a taste of what they are trying to do and that is also helpful.

Now because you have been given another opportunity for a mediation the letter I suggested above effectively amounts to a reply to their defence – but by a back door.

I can imagine that when they receive the letter they will rather wish that they hadn't opted for a mediation but it would look very bad for them to withdraw now.

You will be given a mediation date – please let us know when that happens.
You must familiarise yourself completely with your particulars of claim, their defence – and the letter that we are sending in reply.

I think you must stand your ground. The letter sets out certain red lines and frankly your position throughout the mediation should be that they must disclose precisely all of their answers to your particulars of claim before any mediated settlement can occur.

If they will not then it will have to go to trial and at trial they will be required to disclose their answers to your particulars claim – and if they won't then that will amount to an admission that they have breached their statutory duty in respect of at least two places – the FCA regulations and also the Proceeds of Crime Act.

They cannot allow these allegations to go unanswered.

If it is correct that they haven't informed the NCA under the Proceeds of Crime Act then this is a serious breach because it means that they are acting in arbitrary and peremptory way without any kind of accountability.
If they really have failed to do this then I would say that you are in for a very decent figure in compensation in order to persuade you to withdraw the case so that they can avoid getting a judgement against them.

This means that the mediation you really must stand your ground and I would say that a reasonable arrangement would be that they agree to have a separate discussion with you away from the mediation and then maybe return to the mediation later on.

The separate discussion would be by an exchange of correspondence where a figure of compensation and the terms of that compensation would be agreed.
However I am probably getting ahead of myself but I am simply speculating as to a possible scenario.

It is certainly remarkable that they haven't responded to your allegation that they have failed to inform the NCA. There is no reason that they should keep that secret and a reasonable response from them in their defence would have been to say that they had informed the NCA on XXX date but due to the nature of the issue, the communication with the NCA was confidential although they will be prepared to reveal it to the court if so ordered.
A simple statement like this would basically have scuppered your claim.

Instead they have omitted any reference to it and they have very pointedly avoided the allegation made in your claim. That plus the fact that they have not made a CIFAS reference suggest very strongly that they have simply pull the plug on you and expected to get away with it without bothering to refer to anyone – in other words a substantial breach of statutory duty.

 

If this is all correct then I think that they have acted in a very serious way and as I have already suggested, I think this is worth a substantial amount of compensation – not only to address the inconvenience that you have suffered, but also the price to be paid by them for avoiding a judgement for breach of statutory duty.
If they did have such a judgement then it would certainly be something that we would make sure we get to the newspapers and I can imagine that the Times would be interested as well as radio four. And they would also be obliged to report themselves to the FCA and to the NCA.

[bradybunch]

received the below from the bank yesterday.....

 

Dear Sir

I refer to your recent email regarding mediation.  While I note your position, the bank believes it has responded to the allegations in your amended particulars of claim and none of the alleged breaches are admitted.  I would also like to remind you that, as the mediator would have explained at the time, the discussions between the parties at the mediation were confidential and without prejudice, and should remain so.

In any event, the court has now confirmed that, as the parties have already participated in one mediation via the small claims mediation service, a second mediation through that service is not available.  The bank is reviewing the matter again but remains open to considering possible alternative means of resolution of this matter.