Errors in Judgement?

[malplaquet]

On 1st. November, 2011, I wrote to Santaner Cards querying the charges that they had applied.

At that stage the account was in dispute; it stood at £175.73, most of which were charges.

On21st November I received a Claim Form served by their solicitors.

I put in a Defence.

On 6th Decemeber, 2011 I received a letter from Santander Cards, enclosing a cheque for £202.88 as a refund for all charges since May 2008.

I accepted it, and cashed it.

A hearing for the issued claim was set for 3rd April, 2012.

Part of the Judge's Instructions were that all original documents mentioned in the proceeding should be brought to Court.

I asked to see original Agreement as i told the Judge that what they had sent me as a true copy of the original couldn't be.

I know for a fact that the only form I had ever signed was an IN- Store Application form.

What they had sent as one document (Copy) was a mixture of my Application Form, and its subsequent acceptance.

He couldn't show it to me, as the only thing they had sent him was the same as I had been sent.

My argument to the Judge was that as a) they had admitted that the debt should never have existed in the first place by sending me sa cheque which was greater than the sum of the Claim, then the claim was invalid, and there was nothing but an alleged debt calculated on spurious grounds.

He agreed with me in principle, but said he had to make some kind of award, and that I had clouded the issue by accepting and cashing the cheque.

He wouldn't award them Costs, but ordered me to pay £78.00 odd which he thought I still owed them as I had cashed the cheque.

We argued for 2 hrs, but I could not persuade him of my logic.

I have three questions:-

1. Should they have issued proceedings under the Consumer credit Act 1974 whilst an account was in dispute.

2.While an account is "in dispute" are they allowed to demand payment, add interest or further charges, or pass the account to a third party?

Once they had admitted their unfair charges, and issued a cheque with additional payment "as a gesture of goodwill", was there, in factany debt.

All comments and opinion gratefully received.



The Claimants Solicitors did not attend.

[CleverClogs]

Re: Errors in Judgement?

Who did that delightful old duffer think he was? Judge Judy?

Of course, your defence was defective. You should have retained their cheque uncashed and presented both cheque and covering letter as part of your evidence.

More importantly, you should have reminded that amiable old codger that the claimant had not complied with your request made under section 78(1) of the Consumer Credit Act 1974 (link) for copies of documents and that, until and unless they did, section 78(6) applied and the agreement could not be enforced.

Under the circumstances, it may be easier and less expensive to pay the £79.

Will they accept a cheque to be delivered to one of their offices - and can you get a suitable cow on which to write it? :tinysmile_grin_t:

[charitynjw]

Re: Errors in Judgement?

For clarity
Was it an official s78 request (ie the £1 paid, etc), or just a query?

[labman]

Re: Errors in Judgement?

Regarding questions 1and 2, the answers are, I believe, yes they are legally entitled to do all of those.

The bit I would question is the ultimate court action. My undstanding was inf an account is formally in dispute, which I assume this was, they are not entitled to enforce the debt. Enforcement is the court action, hence my questioning it. Everything else falls under normal debt collection.

Passing the account to a third party is not considered good practice, but is not unlawful. :beagle: