Cohen/Hoist Claim for Santander Overdraft

[BigPhil]

Evening all - I am after some advice regarding a court claim from Hoist/Howard Cohen for a Santander overdraft which defaulted in 2009. Apologies for any waffle!

Back story is that I (well we, joint account Mr & Mrs) had an overdraft with Abbey which went back several years but a while after Santander took over Abbey they wrote to advise that they were pulling the overdraft in full with a couple of weeks (maybe a month) notice. The account had always been within the limit and Abbey had been happy to increase the limit a couple of times previously At the time I had been made redundant and got another job but with a hefty pay cut so we were reliant on the overdraft to keep things going. Contacted our branch who told us this was happening to lots of customers and we would be unlikely to overturn their decision. So we walked across the road and opened an account elsewhere in the fear that we would be left unable to live when Santander took away the OD. We got a number of letters, and I wrote to say that I considered their treatment of us 'unfair', outlined our financial position and said that I would continue to leave a weekly tax credit payment going into the account to gradually reduce the debt but this would be easier if they ceased charging interest and unauthorised overdraft fees.

Santander completely ignored the letter and despite the money going in, they added charges and interest to the balance so in the end I stopped paying the money in. The bank eventually closed the account and stopped chasing for the money. They stopped chasing but sent periodic statements showing the inflated balance but did not actually chase or threaten us until we got a letter from Robinson Way saying that Hoist had bought the debt. Not long afterwards we got a letter from Howard Cohen - a Letter before Claim saying that we should contact RW or a claim would be issued. We wrote to RW in the time specified disputing the amount but suggesting that we might be able to arrange a settlement, but Cohen issued the claim anyway.

We are up to date with the process so far - acknowledged and stated intent to defend all, sent a CPR request to Cohen asking for docs - Overdraft Agreement, Derfault Notice etc (no response whatsoever) and filed a generic defence (by email as MCOL would not accept it). We are now at the stage of having filed the DQ (late and after an order as Mrs did not receive a DQ to fill in and we thought one was sufficient for both Defendants). Currently waiting on mediation as my good lady in particular will almost certainly not be willing to go to court!

What I am trying to establish:-

After we sent the letter to Santander claiming 'unfairness' and mentioning this as a duty under their Code, Santander stopped sending threats and sent a Statement/Notice of Sums In Arrears, but the account numbers no longer matched, it listed the account as a 'Loan' and the covering letter stated 'Notice Regarding Your Loan' with the notice issued in compliance with the CCA. We took this to mean that Santander had noted our complaint and had converted the OD to a loan - albeit they had not suggested repayment terms or issued any form of loan agreement. Coupled with the lack of threats we thought that they might have stepped back from enforcement (and to be honest we were getting far more grief from a couple of other creditors so I put this on the back burner).

Does the fact that Santander seem to have deemed the account a 'loan' have any relevance to the case? Is it something which we can use to our benefit? I am sure that I read of a similar case which suggested that once an OD is converted to a loan then CCA 77/78 applies and the Claimant must provide a copy of the agreement to enforce? Or was that wishful thinking?

Secondly, as mentioned above Mrs Phil is not going to want to attend court (and would find it nigh on impossible to get out of work) nor would she be any practical use either for the court or ahead of that for mediation. What would I need to do to be able to speak for both Defendants in these circumstances?

Many Thanks

[FlamingParrot]

Re: Cohen/Hoist Claim for Santander Overdraft

Hi and welcome

You say the account was defaulted in 2009, have you any idea when you last paid into this current account and when Santander would have asked for payment in full of the overdrawn balance?

If you be helpful if you could post up the particulars of the claim and what you filed as your defence. :typing:

[nemesis45]

Re: Cohen/Hoist Claim for Santander Overdraft

This was as the the branch said very common around the time Satans bank acquired Abbey, account numbers were changed and account typed changed without notice .
Did you receive a default notice under sect.87 of CCA 1974 or a Demand for immediate repayment for all outstanding monies in full or a final demand in 2009.

Were any more payments or written acknowledgments of the debt made after the default was registered.

Does the account still appear on your credit reference files?

If you were not properly informed regarding the change from OD to loan and did not sign any form of agreement for a loan then yes I think can use this in defence.

nem

[BigPhil]

Re: Cohen/Hoist Claim for Santander Overdraft

Thanks - and apologies - work has prevented me coming back sooner.

From reading around it seems as though a lot of ex-Abbey overdrafts were recalled at that time and equally many claims have been filed by Hoist in the last couple of months.

As for my case, the PoC is pretty standard and as follows:-

This claim is for the sum of £XXXX in respect of monies owing pursuant to an overdraft facility under account number XXXX XXXXXXXX
The debt was legally assigned by Santander UK PLC to the claimant and notice has been served. The defendant has failed to pay overdrawn sums owing under the terms and conditions of the bank account.
The claimant claims
1. the sum of £XXXX.XX
2. Interest pursuant to S69 of the county courts act 1984 at a rate of 8.00 percent from the XX/XX/XX to the date hereof 15 days is the sum of £X.XX
3. Daily interest at the rate of .XX
4. Costs

Defence filed as follows :-

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 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 CPR 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.
(c) 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 8th June 2015 namely the Overdraft Agreement together with the Terms and Conditions relevant at the time of inception for the agreed overdraft, Termination/Demand Notice inferred by the Claimant's Particulars of Claim, Notice of Sums In Arrears as inferred and the Notice of Assignment of the account from the Original Creditor to the Claimant.

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

The Notices of Sums In Arrears sent by Abbey state as follows:-

Borrower : Mr BigPhil
Account : LOAN
Sort Code : XXXXXX (Not the one for the current account)
Account Number : XXXXXXXX (Not the one for the current account)

Notice regarding your Loan - This notice is in compliance with the CCA 1974 because your account is in arrears. Please contact us as soon as possible to discuss your missed payments. We would like to help......

Goes on then to pieces about Default Sums and Interest and the FCA info sheet

The actual statement states the balance, interest of £0 and closing balance, then states in the explanation box that the outstanding interest is payable should the account run to the end of the agreed terms

Never had anything from Santander regarding the change of account number other than a periodic statement and no agreement for any loan. As stated I wrote to complain about unfair treatment , threats stopped and the statement appeared several months later, duplicated every few months for the last 5 years or so.

Not sure about credit files as I haven't checked but I would imagine so as the last correspondence I can find was from May 2010

[FlamingParrot]

Re: Cohen/Hoist Claim for Santander Overdraft

What I am trying to establish:-

After we sent the letter to Santander claiming 'unfairness' and mentioning this as a duty under their Code, Santander stopped sending threats and sent a Statement/Notice of Sums In Arrears, but the account numbers no longer matched, it listed the account as a 'Loan' and the covering letter stated 'Notice Regarding Your Loan' with the notice issued in compliance with the CCA. We took this to mean that Santander had noted our complaint and had converted the OD to a loan - albeit they had not suggested repayment terms or issued any form of loan agreement. Coupled with the lack of threats we thought that they might have stepped back from enforcement (and to be honest we were getting far more grief from a couple of other creditors so I put this on the back burner).

Does the fact that Santander seem to have deemed the account a 'loan' have any relevance to the case? Is it something which we can use to our benefit? I am sure that I read of a similar case which suggested that once an OD is converted to a loan then CCA 77/78 applies and the Claimant must provide a copy of the agreement to enforce? Or was that wishful thinking?

The particulars of claim clearly refer to an overdraft rather than a loan. In some cases the particulars have been sloppily drafted so if when they are for an O/D they still mention "an agreement regulated under the CCA..." so some defendants have sent a CCA request to the claimants but that isn't the case here.

This claim is for the sum of £XXXX in respect of monies owing pursuant to an overdraft facility under account number XXXX XXXXXXXX
The debt was legally assigned by Santander UK PLC to the claimant and notice has been served. The defendant has failed to pay overdrawn sums owing under the terms and conditions of the bank account.

Secondly, as mentioned above Mrs Phil is not going to want to attend court (and would find it nigh on impossible to get out of work) nor would she be any practical use either for the court or ahead of that for mediation. What would I need to do to be able to speak for both Defendants in these circumstances?

Was the claim issued in both names?

Not sure about credit files as I haven't checked but I would imagine so as the last correspondence I can find was from May 2010

What sort of correspondence was that?

The Notices of Sums In Arrears sent by Abbey state as follows:-

Borrower : Mr BigPhil
Account : LOAN
Sort Code : XXXXXX (Not the one for the current account)
Account Number : XXXXXXXX (Not the one for the current account)

What was the date on that notice?

[BigPhil]

Re: Cohen/Hoist Claim for Santander Overdraft

The particulars of claim clearly refer to an overdraft rather than a loan. In some cases the particulars have been sloppily drafted so if when they are for an O/D they still mention "an agreement regulated under the CCA..." so some defendants have sent a CCA request to the claimants but that isn't the case here.

Was the claim issued in both names?

Yes it was. We have had a notification of a mediation appointment for a couple of weeks time but it is simply not possible for her to get time off work or even to step out for an hour or so. Neither would she have anything to say - I deal with anything financial, even down to phoning up about her car insurance as she is just not comfortable with it.


What sort of correspondence was that?

A letter stating that we were in breach of our T&Cs for not repaying the (now) unarranged OD in full, cancelling our cards and restricting use of the account. There was also a card from their collections department advising of a home visit - which did not happen to my knowledge.

What was the date on that notice?

Last one was May this year (after we had been told that the account had been transferred to Hoist) and every few months prior to this.

....

[nemesis45]

Re: Cohen/Hoist Claim for Santander Overdraft

I believe a considerable number of current accounts with OD's "acquired" by Satan's bank

were converted to loans if they were delinquent, but as usual the banks record keeping was
painfully sloppy and inaccurate.

You might consider contacting te bank and asking if this OD was converted to a loan.

nem