another newbie looking for help with / dca's - robinson way & howard cohen

[getitforless]

Re: another newbie looking for help with / dca's - robinson way & howard cohen

Anyway, back to the claim – FlamingP’s excellent letter is effectively issuing a CPR 31.14 request BEFORE any claim is issued, under the aegis of the ‘overriding objective’. If they proceed to court without proper answers, it will complicate their case. But, as FlamingP also implies, we need more info on this – because you have not indicated yet what your defence to the claim might be. If they come up with all the documents, what will you do then?

Give us the history – do you know the last date on which you acknowledged the account, for example?

Hope the last post provides some clarification Don.

[Don Quixote]

Re: another newbie looking for help with / dca's - robinson way & howard cohen

That’s good – if the last acknowledgment was in August 08, then it would have become SB by around November 14 at the latest (irrespective of the recorded default).

The default recorded with the CRAs should fairly have been in place by January 09, so should really have already fallen off your record. You should take this up with the original creditor, Santander (as they recorded the data) as well as Hoist (as they inherited the rights and responsibilities) and ask why it took them over a year to record a default. Do you recall receiving a default notice from Santander?

Finally, is this information from your own records and can you be 100% sure of the facts?

[getitforless]

Re: another newbie looking for help with / dca's - robinson way & howard cohen

That’s good – if the last acknowledgment was in August 08, then it would have become SB by around November 14 at the latest (irrespective of the recorded default).

The default recorded with the CRAs should fairly have been in place by January 09, so should really have already fallen off your record. You should take this up with the original creditor, Santander (as they recorded the data) as well as Hoist (as they inherited the rights and responsibilities) and ask why it took them over a year to record a default. Do you recall receiving a default notice from Santander?

Finally, is this information from your own records and can you be 100% sure of the facts?

If there was contact with Santander or Hoist then this would be classed as an acknowledgement of the alleged debt wouldn't it?

[Don Quixote]

Re: another newbie looking for help with / dca's - robinson way & howard cohen

Depends what the contact was. Did you make a payment or acknowledge the debt in writing?

[getitforless]

Re: another newbie looking for help with / dca's - robinson way & howard cohen

Depends what the contact was. Did you make a payment or acknowledge the debt in writing?

My apologies Don, I was referring to your last suggestion of:

You should take this up with the original creditor, Santander (as they recorded the data) as well as Hoist (as they inherited the rights and responsibilities) and ask why it took them over a year to record a default.

I haven't made any other communications about the alleged debt other than what has been previously discussed in this thread.

& whilst I have paperwork, I must admit was a nightmare a few years back with keeping everything organised, therefore I personally feel my best course of action would be to attempt to ride it until the physical CR default date - would you agree?

[Don Quixote]

Re: another newbie looking for help with / dca's - robinson way & howard cohen

Ah, got you. Contacting the original creditor for info is not an admission of anything. An SAR to Santander – or even a phone call – should show up the last payment date.

As for waiting for the recorded CRA default date to pass, I imagine they’re looking to force the issue – hence the increased contact. You could meander on assuming it’s already SB, but personally I’d do my research to be sure of my facts so I could knock Hoist back when they do come calling.

A combination of CCA request and SAR should get all you need, and probably alert them to the fact they’ve missed the boat. Personally, I would deal with this head on because of all the solicitors out there, Howard Cohen don’t p*** about.

[FlamingParrot]

Re: another newbie looking for help with / dca's - robinson way & howard cohen

Anyway, back to the claim – FlamingP’s excellent letter is effectively issuing a CPR 31.14 request BEFORE any claim is issued, under the aegis of the ‘overriding objective’. If they proceed to court without proper answers, it will complicate their case. But, as FlamingP also implies, we need more info on this – because you have not indicated yet what your defence to the claim might be. If they come up with all the documents, what will you do then?

Give us the history – do you know the last date on which you acknowledged the account, for example?

It is indeed similar to a CPR31.14 request, however, it is also a requirement under the pre-action conduct, to respond to a letter before action (a.k.a. letter of claim). 99% of such letters do not comply with the conduct despite being issued by firms of solicitors, this puts you in the right as a prospective defendant/LIP as you ARE complying while they (the alleged professionals), are not! :thumb:

See below from: http://www.justice.gov.uk/courts/pro...action_conduct

4. Compliance

4.1 The CPR enable the court to take into account the extent of the parties’ compliance with this Practice Direction or a relevant pre-action protocol (see paragraph 5.2) when giving directions for the management of claims (see CPR rule 3.1(4) and (5)) and when making orders about who should pay costs (see CPR rule 44.2(5)(a)).

4.2 The court will expect the parties to have complied with this Practice Direction or any relevant pre-action protocol. The court may ask the parties to explain what steps were taken to comply prior to the start of the claim. Where there has been a failure of compliance by a party the court may ask that party to provide an explanation.

Examples of non-compliance

4.4 The court may decide that there has been a failure of compliance by a party because, for example, that party has –

(1) not provided sufficient information to enable the other party to understand the issues;

(2) not acted within a time limit set out in a relevant pre-action protocol, or, where no specific time limit applies, within a reasonable period;
(3) unreasonably refused to consider ADR (paragraph 8 in Part III of this Practice Direction and the pre-action protocols all contain similar provisions about ADR); or
(4) without good reason, not disclosed documents requested to be disclosed.

7. Exchanging information before starting proceedings

7.1 Before starting proceedings –

(1) the claimant should set out the details of the matter in writing by sending a letter before claim to the defendant. This letter before claim is not the start of proceedings; and
(2) the defendant should give a full written response within a reasonable period, preceded, if appropriate, by a written acknowledgment of the letter before claim.

7.2 A ‘reasonable period of time’ will vary depending on the matter. As a general guide –
(1) the defendant should send a letter of acknowledgment within 14 days of receipt of the letter before claim (if a full response has not been sent within that period);
(2) where the matter is straightforward, for example an undisputed debt, then a full response should normally be provided within 14 days;
(3) where a matter requires the involvement of an insurer or other third party or where there are issues about evidence, then a full response should normally be provided within 30 days;

[FlamingParrot]

Re: another newbie looking for help with / dca's - robinson way & howard cohen

Thanks for the feedback FlamingParrot.

The alleged Santander debt originated from an Abbey Credit Card, taken out at the start of 2007 (No PPI as far as I'm aware), the last payment / acknowledgement of the account was august 2008 & a default was listed dec 2009 (updated on CRA jan 2010).

Would that be before April 2007? I don't mean to sound pedantic, it may be important due to a change in legislation with effect from that date, when s.127 of the Consumer Credit Act was repealed.

Always interested in reading success stories, is there any chance of sharing the thread for the Santander & Howard Cohen case that you mentioned above? I've tried the search "Santander Howard Cohen" a few times to no avail.

I see from the above that your account is different from that one in the case above, however, as it involved the same people, here it is for reference and encouragement: https://paulatwatsonssolicitors.word...nder-v-mayhew/ and http://www.bbc.co.uk/news/business-17670803 (same case, different commentary). :thumb:

[getitforless]

Re: another newbie looking for help with / dca's - robinson way & howard cohen

Would that be before April 2007? I don't mean to sound pedantic, it may be important due to a change in legislation with effect from that date, when s.127 of the Consumer Credit Act was repealed.

I see from the above that your account is different from that one in the case above, however, as it involved the same people, here it is for reference and encouragement: https://paulatwatsonssolicitors.word...nder-v-mayhew/ and http://www.bbc.co.uk/news/business-17670803 (same case, different commentary). :thumb:

Cheers, looks like a good bit of bedtime reading!

To clarify: Yes the Card was taken out in Jan 2007.

[FlamingParrot]

Re: another newbie looking for help with / dca's - robinson way & howard cohen

Cheers, looks like a good bit of bedtime reading!

To clarify: Yes the Card was taken out in Jan 2007.

That's great news! :clap2: :clap2: It means you still have the protection of s.127 that prevents a court from enforcing an account unless there was a properly executed agreement containing all the prescribed terms to start with. :grin:

[getitforless]

Re: another newbie looking for help with / dca's - robinson way & howard cohen

That's great news! :clap2: :clap2: It means you still have the protection of s.127 that prevents a court from enforcing an account unless there was a properly executed agreement containing all the prescribed terms to start with. :grin:

Oh I do like a positive, looks like I've got some additional reading to do on s.127.

I take it the best thing to do now is to get hold of all the information Santander hold on me via a subject access request so that I am fully prepared?

Dear Sir/Madam

SAR (Subject Access Request)
FULL NAME : FULL ADDRESS : POSTCODE
Any past names/addresses
Account numbers (if you know them)

1. I formally request that you forward me a true record of any Data held by your organisation relating to myself for any and all accounts held currently or in the past with your company. This should include, but not be limited to all transaction lists, agreements
2. This request should include any Data held for more than 6 years as under the Data Protection Act there is no time limit for information requested.
3. If you do not hold Data for a period longer than 6 years I also request confirmation of this in writing along with your methods used for disposal of such information to comply with the Data Protection Act stating the name and contact information of your registered Data Controller and Code Compliance Officer.

I enclose the statutory maximum fee of £10. You have 40 days from receipt of this request in which to return to me the information requested , securely and in legible condition.

Please note that the above address is the one registered with your organisation and which you have previously found to be acceptable.


Yours faithfully,


(signature)

A few questions relating to the above template:
Is the above SAR template the best one to send for Credit Cards?
Should I just be sending it to the OC (Santander)?
The £10 - I'm guessing a crossed postal order is the best?

Cheers

[FlamingParrot]

Re: another newbie looking for help with / dca's - robinson way & howard cohen

I wish you the best of luck with Santander! ray: I sent them a SAR in Dec 2011, they responded with SIX MONTHS worth of statements and a letter saying if I wanted any more, I'd have to pay a further £10!!!! :rant: :rant: :rant: I sent them another letter and finally an email to complain, eventually got my 6 years worth of statements and £50 compensation paid into my current account! :grin: :grin: :grin:

Below is the SAR letter I sent. I've always sent blank postal orders (they are all crossed by the PO) and so far, have not had any issues with them.

The SAR should go to Santander, yes, they are the only ones who would have all the historical data (statements, etc.) on your account. DCAs/debt purchasers/solicitors have very little to make it worthwhile sending a SAR to them.

Santander UK plc
PO Box 1109
Bradford
BD1 5XS

1 December 2011

Dear Sirs,

Account No: xxxxxxxx
Subject Access Request - S.7 Data Protection Act 1998

Please supply me with a copy of all information your company hold on me including a list of accounts and details of payments along with copies of statements.

Under the Data Protection Act 1984 and 1998, and including the right of subject access under these acts, I hereby request that you supply me with any and all historical data in your possession which relates to me and am entitled to under section 7(1) of the Act. If you store any of the older records on microfiche, please be aware that the Information Commissioner deems this to be a relevant filing system under the Act. As such, any microfiche data must be sent to me in fully legible and comprehensible form.

Additionally, where there has been any event in my account history over this period which has required manual intervention by any member of your staff, or any other person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my business with you. If you are unable to supply this data because there has been no such manual intervention, then please be so kind as to confirm this in your response.

For the avoidance of any and all doubt, I reiterate:
I hereby request that you supply me with any and all historical data in your possession which, in any way appertains to me, including (but not exhaustively) a copy of the original signed executed agreement; statements of account; duplicate statements and/or print outs of all account transactions; all internal and external correspondence sent or received by you including memo’s, logs, notes, screen prints and transcripts; notes of manual interventions such as telephone attendants' notes, copies of stored telephone conversations, internal and external emails; any other information held on all types of media in any relevant filing system (microfiche included). If you have disclosed any information to a third party (with or without my express permission), will you please include details of this in your reply, along with notes of any legal action passed or pending (to include a true copy of default notices, court orders and the like).

Where any information that you provide includes any charges, for example returned payments, late payment fees, and so forth, would you please advise your breakdown of actual costs (liquidated damages) incurred for each charge, and the Term or Condition on which you rely upon to claim such a charge. I also require that you forward, within the above mentioned time scale, a true copy of the Terms and Conditions that were in force at the time my account was opened, and any subsequent amendments to those Terms and Conditions.
I enclose the statutory maximum fee of £10.00 to access ALL data held by you about myself. You should be fully aware of your statutory obligations under the Data Protection Act and that any failure to comply with this request will involve a complaint to the ICO as well as potential legal action.

You have 40 days in which to comply with this request and note that this request has been sent Recorded Delivery so I can ensure compliance on these issues comply within the legislative time frames.

Yours faithfully

[FlamingParrot]

Re: another newbie looking for help with / dca's - robinson way & howard cohen

Oh I do like a positive, looks like I've got some additional reading to do on s.127.

127 Enforcement orders in cases of infringement

(1) In the case of an application for an enforcement order under—

(a) section 65(1) (improperly executed agreements), or
(b) section 105(7)(a) or (b) (improperly executed security instruments), or
(c) section 111(2) (failure to serve copy of notice on surety),
or
(d) section 124(1) or (2) (taking of negotiable instrument in contravention of section 123),

the court shall dismiss the application if, but (subject to subsections (3) and (4)) only if, it considers it just to do so having regard to—

(i) prejudice caused to any person by the contravention in question, and the degree of culpability for it; and
(ii) the powers conferred on the court by subsection (2) and sections 135 and 136.

(2) If it appears to the court just to do so, it may in an enforcement order reduce or discharge any sum payable by the debtor or hirer, or any surety, so as to compensate him for prejudice suffered as a result of the contravention in question.
(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

(4) The court shall not make an enforcement order under section 65(1) in the case of a cancellable agreement if—
(a) a provision of section 62 or 63 was not complied with, and the creditor or owner did not give a copy of the executed agreement, and of any other document referred to in it, to the debtor or hirer before the commencement of the proceedings in which the order is sought, or
(b) section 64(1) was not complied with.
(5)Where an enforcement order is made in a case to which subsection (3) applies, the order may direct that the regulated agreement is to have effect as if it did not include a term omitted from the document signed by the debtor or hirer.

Section 61(1) of the Consumer Credit Act 1974 defines what constitutes a properly executed agreement:

61 Signing of agreement.

(1) A regulated agreement is not properly executed unless—
(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and
(b) the document embodies all the terms of the agreement, other than implied terms, and
(c) the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.

[getitforless]

Re: another newbie looking for help with / dca's - robinson way & howard cohen

Massive massive help Flaming Parrot.

SAR will be going via post tomorrow morning. Fingers crossed Santander respond promptly :tinysmile_hmm_t2: (it's about time I was in for a bit of luck!).

I will have a read of the links etc that you've pointed out & keep the thread updated when I start to receive responses.

Cheers!

[FlamingParrot]

Re: another newbie looking for help with / dca's - robinson way & howard cohen

If you sent the letter above, I hope you changed the dates quoted on it to reflect the dates of the letter you received and the CCA request you sent. :confused2: