vs howard cowen/santander court claim

[mystery1]

Hi

Thanks for replies..at work last night so couldn`t reply.

Have sent SAR to Santander to find out how much of the amount is made up of costs. Would I include this in the Defence or leave it until we find out how much is made up of costs?

 

Other half phoned the court just out of curiosity to see if the letter/email from HC was enough to extend by 28 days. Answer was no as it had no exact date for when it was to be extended to. She was advised to file defence with what she had with a view to include more when the documents arrive, and to include letter/email from HC.

 

She doesn`t have original agreement as this goes back a looong way, try and get dates later.

 

I guess will put in a holding defence for lack of agreement and unknown charges, with right to amend at a later date.

cheers

D

 

 

Putting in a defence which you'd have to amend is a potentially costly. http://www.consumeractiongroup.co.uk/forum/showthread.php?283443-Embarrassed-Defences-and-the-problems-with-them. Post 6

 

"Ok CPR 17.1 clearly sets out when you can amend a statement of case or defence

 

So, if you need to amend, the general rule on costs is you pay the other parties costs in dealing with your amended Defence. This can run to £2k or more, if the other side revert to a barrister, which they are entitled to do afterall cos you are the one amending.

 

So this is the problem, you may well be able to amend, but you will pay the costs in most circumstances unless you can show the court that the Claimant has been unreasonable and is the cause of the need to amend"

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?255329-CPR-part-18-vs-CPR-31.14-Confused-well-read-here

 

"you cant defend a claim under an agreement if you don't have the agreement as it is simply absurd to suggest you can,so, dont be panicked into putting in what people say is a "Embarrassed defence" as the rules are there to provide you with the tools and info you need to defend a case, you will not face criticism for using the rules by the court, but you will face a huge costs order if you muck around and file spurious and merit-less embarrased defences which have no legal basis.

 

Use the rules properly and you may face a discontinuance notice, use the rules WRONGLY and you will face summary judgement or a charging order or worst a order for sale."

 

 

The advice above comes from a solicitor whose firm won :-

 

http://www.bailii.org/ew/cases/EWCA/Civ/2011/105.html (appeal court)

 

http://www.bailii.org/ew/cases/EWHC/Mercantile/2011/B3.html (high court)

 

http://www.bbc.co.uk/news/business-13349239 6 cases listed here plus those 2 above

 

And many more.

 

Ignore that advice if you want.

 

M1

[harrishawker]

many thanks M1..advice taken and will not be ignored

 

D

[harrishawker]

ok so work over...here is my cobbled attempt at some kind of defence. It might be completely useless but 1st ever got to try!!

 

I will also be sending the letters an emails to and from HC. I trust I will need to make reference to them in the defence.

 

 

1. It is Not admitted that the Defendant signed an agreement with #############. If, which is not admitted, such an agreement exists the precise terms and date of any such agreement are not admitted. The Defendant does not have in his possession any such agreement and is not therefore able to comment thereon. The Claimant is put to strict proof as to the date and terms of such agreement.

2. In respect of that which is denied, The Defendant has made a request for disclosure, pursuant to Part 31.14 of theCivil Procedure Rules, to the Claimant to allow him to properly respond to the claim. The Claimant has failed to fully furnish the Defendant with the required documents to allow a full and particularised defence.

3 . It is averred that if any agreement existed that the aforesaid agreement was a regulated agreement within the terms of the Consumer Credit Act 1974 (The Act). It is not admitted that any such Agreement is enforceable within the terms of the Act. The Claimant is put to strict proof that the aforesaid agreement was properly executed and has been enforceable at all times since its' inception.

4. The claimant is put to strict proof as to the content and service of any such alleged default notice as noted in the Caimants Particulars Of Claim.

5 In respect of that which is denied, The Defendant on no less than 3 occasions contacted the Claimant to come to an agreement regarding an extension of time for the defence to be submitted, pursuant to 15.5 of the Civil Procedure Rules, and on no less than 2 occasions made a request for a copy of alleged agreement , pursunt to 77/78 Consumer Credit Act 1974. To date no satifactory outcome has come of this.

6. Further and in the alternative it is not admitted that the sums claimed are lawfully owing. The Claimant is put to strict proof as to how the sums claimed have been calculated and as to how it is asserted that the sums claimed are contractually owing.

 

Statement of Truth

 

I believe that the facts stated in this defence are true.

 

 

I am the Defendant.

 

 

XXXXX

 

 

Date

 

 

 

 

go to go....but thanks for looking any input welcome

 

D

[Old Cogger]

Could alter to read " Neither admit or Deny", in 1st paragraph, sure others will respond so see what is suggested in anything????

[mystery1]

2. In respect of that which is denied, The Defendant has made a request for disclosure, pursuant to Part 31.14 of theCivil Procedure Rules, to the Claimant to allow him to properly respond to the claim. The Claimant has failed to fully furnish the Defendant with the required documents to allow a full and particularised defence.

 

 

You should not be entering a defence. You should be making an unless order. Produce the documents under 31.14 or the claim is struck out.

 

If you defend as above the court will take it you understand the claim and to amend your defence will lead to costs against you.

 

legal issues-compilation.pdf

 

M1

[consumeredge]

Howard Cohen & Co are no fools, they monitor this forum.

 

Unfortunately Dave you have positively identified your partner to Santander Cards UK Limited and Howard Cohen & Co by failing to omit the Account Number on the Claim Form, the exhibited Default Notice gives the exact total of arrears at the time of its issue, 1st March 2012

 

Whilst you’ve noted down the Default Notice as being received on the 9th March 2012, whereas the sentence "if the action required by this notice is taken before the date shown" can confuse somewhat, the notice does include the sentence "You must pay the arrears within 14 days of receipt of this notice"

 

A Notice of Termination was sent last year dated 15th April 2011 whereby Santander Cards UK Limited clearly state that in accordance with condition 21.1 of the Credit Card Agreement, as from the 24th June 2011 your partner will only be able to make payments into the account. As a consequence your partner will be unable to make any further purchases or other new transactions and are advised to cut the credit card in 2.

 

After the 24th June 2011once the outstanding balance is fully repaid Santander Cards will then close the account.

 

Hopefully your partner did not use the card for any purchases or transactions from the 15th April 2011 till 24th June and took their advice by cutting the card up.

 

It would be reasonable to assume you neither made any contact with Santander or made any payments to them since 15th April 2011

 

IMO the evidence Santander Cards UK Limited/Howard Cohen & Co will submit to the court (Certificate of Incorporation, Credit Card Agreement, Statements of Account, Termination Notice and Default Notice) will more than likely persuade the court they can rule on probabilities, that is why I suggested seek out the possibility of a consent order.

 

Seems daft to me to post up evidence against yourself then believe you can escape on a technicality, as the problem with section 78 cases is that while the debt is only unenforceable while the error persists (IE Credit Card Agreement), When they find the right information and supply it to the court and defendant, they can proceed to collect their debt as before.

[harrishawker]

*update*

 

received AQ..have received SAR from San...... the agreement is very hard to read, and seems to be signed in wrong place..it's not signed in box for customer but in box ' on behalf of company' ?? It is on 2 separate sheets of paper and no original t&c, only Sant..... t&c's.

 

have put all of charges into spreadsheet and total is way more than what claim is for.

Do I include any of this in the AQ?

San..... are' looking into charges' as i have wrote to them about them.

 

 

You can see on 2nd pic where i have put not signed here...that's where it should have been signed surely?

but was signed in bottom box.

 

just need to know if i should put this into AQ, and if any of this changes anything

cheers

Dave

 

 

 

 

[harrishawker]

..

[harrishawker]

Hi

Any thoughts on the last pic? Is it signed correctly?

 

Cheers

D

[mystery1]

The signature that counts is yours. If you didn't ever sign you say so. If you did sign then forget about signatures.

 

M1

[harrishawker]

Does it matter if it signed in the box marked 'Signed on behalf of company' and not above in the box 'Signature of Customer(s)'

 

Cheers

D

[mystery1]

De Minimis i'd think. You need a serious bank hating judge to let that fly.

 

M1