Intrum (1st Credt)/DWF SPC OD Court Claim - Old HBOS OD - Calling OC to Court?

[salkirwi]

Thank you DX

 

I shall phone on Monday and send a new SAR

 

The payment her ex did was for the OD not the loan, and the idea is to close the account and to reduce the stress on her. 

 

She explained to me that the discussion with HBOS regarding her her illness and the OD

 

they reduced the sum through a combination of removing charges and adjustment;  but they said they could only do it if she present to them a medical certificate form her doctor which i did, as I mention above.   

 

However, I shall study the Link you send me and see whether there is away out of this.

 

Thank you DX for support 

[dx100uk]

The key is going to be in the sar

 

in the statements you have, do they show the charges refunded at the time this supposed settlement was sent by the ex?

 

would support my theory he didn't if the charges refund shows but nowt else

[salkirwi]

I am hoping the SAR will show some good records.

 

In the statement they do not show a refund of the charges or a  paymnet of the ex.  They just closed  the account.

 

I have attached the last 4 pages of the statements (sensitive data removed).

 

I think I need to assume the ex never paid any money too.

 

.Last-4-Pages-Bank-Account-before-account-closed.pdf

Edited February 20, 2021 by salkirwi

[dx100uk]

each monthly statement says:

 

ACCOUNT CHARGES FOR THE PERIOD

 

total those up for me

[salkirwi]

The total charges are  £598.32 

I have an Excel sheet for the charges for each month if you need it.

[dx100uk]

is that our CISHEET at their int Rate?

 

Latest Spreadsheets - PPI Claims and Charges Claims - Dec 2011 - Payment Protection Insurance (PPI) - Consumer Action Group

 

or pop then in our statint sheet 

each one on its individual date

[salkirwi]

All we have just now is the OD account sheets supplied by the court case (35 pages for the period 12/01/2012  to   22/08/2017).  There is no mention of any interest rate or charges schedule.

 

As you said, we need to see what the SAR brings.

 

However, I can see  there are two charges which looks strange. They are for a personal loan charges. Just a one of simple fixed charge of £25  . . see the attached image

[dx100uk]

the fees you have in your spreadsheet.

and those list each month under each

 

ACCOUNT CHARGES FOR THE PERIOD

 

pop them in our statint sheet i gave earlier

ignore those you indicate above..not what those mean till the SAR

 

[salkirwi]

Here it is

StatIntSheet v101-Niece.xls

[dx100uk]

i know this is being careful but can you put the reason/description for each in please?

 

[salkirwi]

Do you want it in such details . .  let me know if you wish any other variation to the Excel sheet 

StatIntSheet v101-Niece2.xls

[dx100uk]

thank you 

well thats almost 50% of the balance and is only at std flat 8%

bank OD's are compounded interest so if we could look around on here 

we must be able to find the APR int rate.

 

compounded using the FOSCISHEET or the CISHEET will add £100's more.

 

good argument there that balance is mostly unlawful charges and interest.

[salkirwi]

Briliant argument  . . . let me explore this avenue further  and see what I can find 

thank you DX for your time 

[salkirwi]

Hello DX

 

I am back seeking your help  . . kindly.

 

After the last CMD on 17 February we were given 21 days to submit the following:

 

1.    written note of my niece’s defence to specify:

             a.    When and by whom the settlement amount mentioned in the initial defence was paid.

              b.    Explaining the specific issue of the default Notice, if you remember they said in their case that it was issued.

              c.    Specify the amount and dates of the bank’s charges that are in dispute.

 

2.    Should we need to call witnesses, I presume for ex-partner or HBOS, we can do that on Form 10A

 

3.    We can seek order from the court to HBOS to submit documents, Form F10B.

 

I need to submit a new defence without emphasising the role of ex-partners for two reasons. One, he might not paid the settlement. Two, he is the forces and it is unlikely we can locate where he is even to get a witness statement from him.

 

I would appreciate your thoughts to see how best to present the new defence.

 

I have few days yet as I need to submit before the end of the 21 days (I worked out to be 10 March).

 

I could upload the pdf file of the notes of the last CMD, sensitive information Redacted, for your to have a glance at it.

 

Thank you

[dx100uk]

i dont think you need to supply a 2nd defence, thats not usual so lets see these notes and the sheriffs orders please about exactly what you have to do.

 

the only thing above in your list which has any worth in moving forward with is 1 b+c

the rest forget. we've already concluded that ex didn't settle the OD so forget that and anything to with HBOS , not relevant.

 

you either exploit the mistakes in intrum's claim, its an OD there is no agreement under the CCA, there is no DN issued as its not covered by section 87 of the CCA.

 

go read how your original defence should have looked

post 26 here

Cabot/Nolans Simple Procedure - old HBOS OD debt - Page 2 - Scotland Financial Legal Issues - Consumer Action Group

 

particularly from The claimant is also put to strict proof to:-

 

carefully noting what the claimant should be producing, which should they fail to provide should render any success in the claim fatal 

 

 

 

 

[salkirwi]

Thank you DX for the quick response.

 

Here is the Notes attached

 

I shall read the post you referred me to and prepare a response for you to advise me if I am on the right track.

.CMD-Notes-17Feb21.pdf

[dx100uk]

ouch you really have been flying kites here and letting the claimant control things.

it is worrying that the sheriff has tried several times to nail you about this (factious) payment,  but its also lucky and interesting to see he has not shut the door on your new issues . typically the situation you see yourself in, is one that we put the claimant in by our std defence (that you are reading now) 

 

i think a bit of crawling is now in order( for want of another word) and it needs to be made 1000% clear to the sheriff ( even if by a little white lie) that it transpires there most probably never was any settlement made to HBOS by the ex

 

some vague explanation that he has confirmed he never did, and bring in the fact that he is a currently deployed by the UK military forces abroad we believe and communication has been to put it politely very difficult due to the nature of his deployment..it might also now be time to mention the mental issue ( with proof) , your daughter suffers from and how these obviously contributed to the situation and p'haps of being thus exploited by the EX whom if one were to be honest m'lud, is a bit of what someone would describe 'as a rouge'.

 

then your defence focus needs to switch 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 the 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.

 

particularly a.b.c.

explaining in concise but brief detail why each if not produced , is fatal to any enforcement of an OD debt claim

 

have you yet included 

The court will be aware that penalty charges 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.

 

in anything to the court to date.

 

 

 

 

[salkirwi]

51 minutes ago, dx100uk said:

ouch you really have been flying kites here and letting the claimant control things.

it is worrying that the sheriff has tried several times to nail you about this (factious) payment,  but its also lucky and interesting to see he has not shut the door on your new issues . typically the situation you see yourself in, is one that we put the claimant in by our std defence (that you are reading now) 

 

That is what I felt during the CMD. The judge was actually heading to do what you have just said but I objected that this is unfair to my niece as the OC had failed to perform their obligations.  I went on to raise the issues of the DN and the unfair charges.

 

Quote

i think a bit of crawling is now in order( for want of another word) and it needs to be made 1000% clear to the sheriff ( even if by a little white lie) that it transpires there most probably never was any settlement made to HBOS by the ex

There is no need to a white lies as the case it is that my niece was ill and her ex was helping by leading to settle the OD issue.  She cannot recollect exactly what was the agreement with HBOS and how it was concluded.  We were hoping that the SAR would bring evidence of the settlement payment as well as clarify the bank’s awareness of her illness.  The bank was handed over her medical report and we have a copy of the report.

Quote

some vague explanation that he has confirmed he never did, and bring in the fact that he is a currently deployed by the UK military forces abroad we believe and communication has been to put it politely very difficult due to the nature of his deployment..it might also now be time to mention the mental issue ( with proof) , your daughter suffers from and how these obviously contributed to the situation and p'haps of being thus exploited by the EX whom if one were to be honest m'lud, is a bit of what someone would describe 'as a rouge'.

 

then your defence focus needs to switch 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 the 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.

 

particularly a.b.c.

explaining in concise but brief detail why each if not produced , is fatal to any enforcement of an OD debt claim

 

have you yet included 

The court will be aware that penalty charges 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.

 

Quote

in anything to the court to date.

Not clear !! ??

Quote

 

I shall start writing the text  . .  it will take me to tomorrow afternoon 

Thanks DX

Quote

 

 

Edited March 5, 2021 by salkirwi

[salkirwi]

Good evening DX100

 

Here is a draft of my response to the court order.  I would be obliged if you could review it and avise me if I am on the right track.

 

Defendant Statement of Position in Response to the Order of the Sheriff

 

1. The defendant suffered Severe Depression illness almost 12 months prior to the closer of the Bank account.
2. HBOS was made aware of the defendant illness.  A Medical Certificate dated 15 Sept 2017 was handed over to the bank as a proof. (A copy of the report will be submitted exclusively to the court review)
3. The defendant, with the support of her ex-partner, sought a resolution from the OC regarding the escalation of her OD account, which it was mostly formed of extortionate bank charges/penalties being applied to the account.
4. HBOS agreed to reduce the outstand OD sum to £XXX and closed the account.
5. The defendant is confident that her ex-partner has settled the agreed sum with OC, but not absolutely certain, considering her health state at that time.
6. She has been actively trying to reach for her ex-partner for documented evidence, but the fact that, we believe, he is a currently deployed by the UK military forces abroad and communication has been, to put it politely, very difficult due to the nature of his deployment.
7. As the court is aware, the defendant has been trying to retrieve the data of her dealing with/from OC which it should reflect history of the above.  The defendant has already written twice to HBOS, as well as visiting her bank branch, on 01 March 2021, in person demanding the requested data.  HBOS promised to send the data to her as soon as they can.
8. In addition to the above reasoning and contend, the defendant refute the claimants claim is owed or payable.  Due to punitive and extortionate fees the facility became untenable. Any alleged balance  claimed will consist totally of default penalties, punitive 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 and any alleged balance was due to punitive and extortionate charges .
9. It is expected that the Claimant prove the allegation that the money is owed. Therefore the Claimant is put to strict proof to:-

              a.    Provide a copy agreement/facility arrangement along with the Terms and Conditions at inception, which 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.

              c.    Provide a breakdown of their excessive charging/fees levied to the account and justify 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.    Evidence how they have complied with sections III & IV of Practice Direction - Pre-action Conduct.  

 

10.   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.

Edited March 6, 2021 by salkirwi

[dx100uk]

i'm gonna get a 2nd opinion on this and how you should re-order the above.

 

i really do think that you need to now clearly portray that the supposed belief that a payment was made you've now realised as a false flag.

 

the main thrust of your defence should be paperwork issues and how important those are to their successful case.

then the  charges issue 

[salkirwi]

11 hours ago, dx100uk said:

i'm gonna get a 2nd opinion on this and how you should re-order the above.

Thank you for your effort and care.

11 hours ago, dx100uk said:

i really do think that you need to now clearly portray that the supposed belief that a payment was made you've now realised as a false flag.

I take your point.  The issue is that the girl  does feel the ex-partner did settle with the bank, and  I feel if we just declare that it never happen then the court will label her as a liar.

 

However, perhaps we should tune it down like so:

4.   The defendant believe that the ex-partner had reached an agreement with HBOS to reduce the outstand OD sum to £XXX and closed the account.

5.   The defendant, as much as she would like to be confident that her ex-partner had settled the agreed sum with OC, she is not absolutely certain, considering her health state at that time.

 

11 hours ago, dx100uk said:

the main thrust of your defence should be paperwork issues and how important those are to their successful case.

then the  charges issue 

 

[salkirwi]

Good afternoon DX . . . . any joy with the second opinion ?

[dx100uk]

yes but ofcourse 24hrs or less is a bit quick when most people are busy 9-5 working have patience..we've a good bit of time before you have to submit things..

 

 

[salkirwi]

Thank you . . .  

 

[salkirwi]

Good evening DX . .  Tomorrow is the last day, according to my calculation . . . . Do you think you will have the time, and the rest of the team, to add some advice.

 

I am sorry for if I have been unreasonable.

 

Cheers