car2403 -v- GE Capial Bank (Default removal)

[car2403]

Originally Posted by car2403

Re-reading this - obviously standard issue - letter, I think the key words are "FAILURE TO PAY MAY RESULT IN THE FOLLOWING ACTION", "...which could result in a Judgment being recorded" and "A Debt collector may be instructed". In fact, this letter actually says NOTHING at all if you read between the lines...

Having said that, I've seen this in other cases, and ignoring it doesn't seem the best way to handle it. This is my response;



This might be a little OTT, but I'm replying as "stress management" as I was so angry when reading it.

I'm also writing to GE Money's Solicitors and telling them I intend to complain to the Law Society if they don't stop collecting on a disputed account. A copy of both letters are going to GE Money as a formal complaint as well. (I want to see if I can rattle some cages here!)

I'm now very calm and hope they continue to contact me... Could this scare them off?...

Reply from this letter;

I refer to your letter dated 7 December 2007. We acknowledge your complaint regarding the letter which was recently sent to you.


Your complaint has been logged and will be dealt with pursuant to our Iso 9001:2000 accredited complaints procedure, a copy of which is enclosed for your information.


We are investigating the issues raised by you and we will issue our formal response to you upon completion of our enquiries.


Yours sincerely

[dad]

Just received a FINAL DEMAND for payment from Lewis Debt Recovery

Car,

Depending how far along you are with the court proceedings you may wish to consider attaching Lewis as a further defendant to your case against GE Capital. I 'think' the way to proceed would be:

1. LBA - breach Data Protection Act etc -pay me default sum +£1K in 7/14 days or else
2. Application notice including amended particulars of claim. (Probably need to speak to court about exact procedure).

Two birds with one stone and it allows you to go through all the breaches of the OFT's guidance.

D

[car2403]

I've had a letter from Lewis in response to the complaint - they've apologised that someone hasn't done their job properly and marked the account in dispute, hence the reason for the last letter from them. They (at GE's request) have now sent the account back to GE until the Court action is completed and the dispute resolved. Wasn't expecting that!

To answer your question, dad, GE has always been the Creditor under the agreement - I've received no confirmation that any assignment has taken place to Lewis, which is why I've left them off the N1 altogether. GE haven't entered their Defence yet (due yesterday) but now the account is back with them this seems to have been the right thing to do from the start anyway.

Incidentally, amending my POC would mean having to restart the claim process, so I would have been relying on s.175 CCA 1974. As it goes, I don't need to now.

I still have to decide whether to pursue my complaint with Lewis with the FOS though... Not sure I can see the point really, as I've got what I wanted. Would be nice to add this response to any ongoing Consumer complaints if CAG has issues with this DCA and starts a mass complaint, which I'm happy to do.

[car2403]

Originally Posted by car2403

GE has now failed to reply to my CPR Part 18 request for more information - I'll leave this to the end of next week before writing to the Court asking them to order their compliance with it. This is going off to them now, though;

Still nothing on the Data Protection Act S.A.R - (Subject Access Request) I sent on 19 November. They have until 01/01/08 to reply. Happy New Year GE Money! This is going off to GE;

Well, well, well... Despite me reminding GE Money that they would have had 40 days to comply with my Data Protection Act S.A.R - (Subject Access Request) on 01/01/08... Guess what... They still haven't complied! This is very concerning, as it suggests they don't have any data on me. ("Hmmm", I'm thinking to myself... "how do they intend to Defend my claim in that case"...) I've sent off an LBA for Data Protection Act S.A.R - (Subject Access Request) enforcement, (already done this with O2, so I'm an old hand now!) along with a copy of a complaint I've sent to the Information Commissioners Office today - for all that that will be worth...

Still no reply from that CPR Part 18 request for more information neither - just another nail in their coffin, IMO. I won't bother writing the Court about this as they don't have to comply as it's likely to be allocated to the small claims track, where CPR Part 18 doesn't need to be followed. I will be asking for Special Directions when I get to the AQ stage, though. (All this is already prepared)

I'm also chasing the Court, as I believe I should have had Judgment by Default by now, as the claim was issued some time ago and I sent in a request on 21/12/07. I'll ring them for an update tomorrow.

The plot thickens...

[car2403]

Rang the Court who confirmed that the Judge has awarded Judgment by Default to me earlier in the week - I've just received the sealed order from the Court in this mornings post too. This is really bad for GE, as they did Acknowledge service and intended to defend, but the Court hasn't received a defence!

This, in itself, is good news as it means I'VE WON! But... there's a warning, as it presents it's own challenge!

I've had a similar experience recently with O2, so I won't post the details of that up here, but you can see whats happening there;

car2403 -v- o2 (& Wescot DCA)(Default removal) (read from post #39 if the direct link doesn't work)

So, following that process, I'm sending this off to GE Capital Bank today;

I refer to the County Court Claim recently issued by Morpeth and Berwick County Court.

As you have failed to submit a defence to the claim, the Court has entered Judgment by Default at my request. I enclosed copies of Judgment for the Claim sent to you by the Court dated 28 December 2007.

As Judgment has now been entered, I now require confirmation from you, within 14 days of the date of receipt of this letter, that you will take such actions sought within the Claim and seek confirmation of such actions in return, namely;

1. That you will, within 14 days of your receipt of this letter, comply under the Judgment seeking your compliance under s.14(1) and s.14(3) Data Protection Act, immediately;

“44. Additionally, the claimant requests an order from the Court under s.14(1) (for the erasure of the incorrect information, held by the Defendant) and s.14(3) (for the blocking or erasure of the data passed to Credit Reference Agencies, by the Defendant) of the Data Protection Act 1998, for the removal of any Default or Termination Notices and any other information relating to this agreement, that may cause prejudice or further damage to the Claimant;

“14. - (1) If a court is satisfied on the application of a data subject that personal data of which the applicant is the subject are inaccurate, the court may order the data controller to rectify, block, erase or destroy those data and any other personal data in respect of which he is the data controller and which contain an expression of opinion which appears to the court to be based on the inaccurate data.

14. – (3) Where the court—

(a) makes an order under subsection (1), or

(b) is satisfied on the application of a data subject that personal data of which he was the data subject and which have been rectified, blocked, erased or destroyed were inaccurate, it may, where it considers it reasonably practicable, order the data controller to notify third parties to whom the data have been disclosed of the rectification, blocking, erasure or destruction.””

2. That you will, within 14 days of your receipt of this letter, pay the total sum of £1,065.00 to me immediately under the Judgment to Claim 7*******;

“45. The Claimant further claims the Court fee of £65.

46. The Claimant therefore claims against the Defendant in the terms outlined in these particulars of claim and seeks;

46.1. Substantial damages from the Defendant to the value of £1,000 for the legal reasons outlined in Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 and Kpohraror v Woolwich Building Society [1996] 4 All ER 119;

46.2. An order from the Court under s.14(1) of the Data Protection Act 1998 for the removal of the Default Notice and any other prejudicial information from all credit reference agencies;

46.3. Costs, at the discretion of the Court;”

Please note that failure to respond to this letter with details of your unconditional compliance with the Judgment, detailed above, will result in further recourse to the Court informing the Judge of your non-compliance with such Judgment and seeking further Order that you do comply with the Judgments laid down. This will be at further cost to you, as I will seek to recover any applicable Application Fees that the Court requires to take such action. I also reserve the right to seek enforcement of these Judgments against you in the form of a Warrant of Execution, a Third Party Debt Order, or any other means available.

I look forward to receiving your response, as outlined above, at your earliest convenience.

Yours faithfully

[car2403]

Judgment has been set aside as the Court received a faxed Defence before the Judgment was entered.

The Defence is;

1. The Defendant denies that the Claimant is entitled to the relief claimed or any relief against the Defendant in respect of the matters stated by the Claimant in his particulars of claim.

[Standard opening of defence]

2. The Defendant was at all material times engaged in the business of providing credit to consumers, in respect of which it is regulated by the Office of Fair Trading.

[Agreed]

3. It is admitted that on 29 January 2005, the Claimant entered into a credit agreement with the Defendant for the provision to the Claimant by the Defendant of credit for the purchases of goods in B & Q Stores (“the Agreement”) (account number: ****** —“the Account”).

[I deny I entered in to a Credit Agreement, but I agree did enter in to an unenforceable contract]

4. It is admitted that no date has been inserted in the “Date of Agreement” box; however it is denied that such omission tenders the Agreement unenforceable

[According to the regulations/OFT guidance it is]

5. Further, the Defendant denies that the Claimant has suffered any prejudice as a result of the omission.

[Unlawful Default is prejudice, is it not?]

6. In the alternative, if, which is denied, the Agreement is unenforceable then this does not alter the fact that the Agreement remains a valid contract The Claimant’s obligations under the Agreement remain binding.

[I don't get this? Unenforceable agreement = unenforceable debt. This implies something different, which is wrong]

7 It is denied that the Defendant has passed any inaccurate information to any Credit Reference Agencies. All data passed to the Credit Agencies during the currency of the Credit Agreement accurately reflected the state of the Claimant’s account and how the Claimant operated it and was in accordance with the Information Commissioner’s guidance on the fair processing of personal data with regard to defaults.

[A matter of opinion on which the Court will decide. I'm sure the Information Commissioners Office's guidance doesn't mention Defaulting customers without a legal right to be able to under the CCA due to an unenforceable agreement]

8. The Claimant’s claims that any default notice was invalid on the basis that such a notice would comprise, partly, of the default charges debited to the Account which, the Claimant avers, are illegal. The Defendant denies that the charges are a disproportionate penalty, unenforceable, irrecoverable at common law or contrary to the Unfair Terms in Consumer Contracts Regulations 1999 or otherwise. The charges are a genuine pre-estimate of the cost to the Defendant of dealing with the claimant’s default and are reasonable. Any default notice or other information provided to any Credit Reference Agencies was, therefore, accurate and valid and, accordingly, the Claimant’s claim for damages in denied.

[Prove it!]

9 In the premises, it is denied that the Claimant is entitled to relief whether as claimed or at all.

[Standard close of defence]

I'm not worried about this.

AQ due back by 25 January, so I'll be using the one I composed for my HFC claim (adapted to suit) which is here;

http://www.consumeractiongroup.co.uk...ml#post1274737 (post #127 if the direct link doesn't work)

[car2403]

Originally Posted by car2403

Well, well, well... Despite me reminding GE Money that they would have had 40 days to comply with my Data Protection Act S.A.R - (Subject Access Request) on 01/01/08... Guess what... They still haven't complied! This is very concerning, as it suggests they don't have any data on me. ("Hmmm", I'm thinking to myself... "how do they intend to Defend my claim in that case"...) I've sent off an LBA for Data Protection Act S.A.R - (Subject Access Request) enforcement, (already done this with O2, so I'm an old hand now!) along with a copy of a complaint I've sent to the Information Commissioners Office today - for all that that will be worth...

Still no reply from that CPR Part 18 request for more information neither - just another nail in their coffin, IMO. I won't bother writing the Court about this as they don't have to comply as it's likely to be allocated to the small claims track, where CPR Part 18 doesn't need to be followed. I will be asking for Special Directions when I get to the AQ stage, though. (All this is already prepared)

I'm also chasing the Court, as I believe I should have had Judgment by Default by now, as the claim was issued some time ago and I sent in a request on 21/12/07. I'll ring them for an update tomorrow.

The plot thickens...

I sent a N1 in to my local Court, which was issued on 11 January, for Data Protection Act S.A.R - (Subject Access Request) enforcement and damages (£95) due to the delay in replying - as soon as GE have received the claim form, they've replied with the info I asked for in the SAR. Strangely, this letter was dated 8 January - I didn't receive it until last week!

They have until Monday to acknowledge service or enter a defence on the S.A.R - (Subject Access Request) claim - I have a Judgment by Default request sitting waiting to go to the Court in Monday's post. I will either get an AOS, or a defence saying they have already complied with the request - either way I want the damages outlined in the claim.

The AQ for the Default removal claim should receive some attention from the Court this week, with allocation to the small claims track and a hearing date being set for mid- to late March, knowing what the workload of this Court is. (I've issued lots of claims there recently! )

[car2403]

Originally Posted by car2403

I sent a N1 in to my local Court, which was issued on 11 January, for Data Protection Act S.A.R - (Subject Access Request) enforcement and damages (£95) due to the delay in replying - as soon as GE have received the claim form, they've replied with the info I asked for in the S.A.R - (Subject Access Request). Strangely, this letter was dated 8 January - I didn't receive it until last week!

They have until Monday to acknowledge service or enter a defence on the S.A.R - (Subject Access Request) claim - I have a Judgment by Default request sitting waiting to go to the Court in Monday's post. I will either get an AOS, or a defence saying they have already complied with the request - either way I want the damages outlined in the claim.

AOS received with an intention to defend in full - I, for one, can't wait to hear this one...

[benmills]

Due you think it's a bluff? Looking forward to their defence. Thanks for all your hard work on default removal. Have just used your Barclays argument against A and L. They even wrote telling me my £1000 overdraft offer wasn't a credit agreement. They'll be telling me they're not a bank next. No lending going on here. The court was helpful too.

[car2403]

Originally Posted by benmills

Due you think it's a bluff? Looking forward to their defence. Thanks for all your hard work on default removal. Have just used your Barclays argument against A and L. They even wrote telling me my £1000 overdraft offer wasn't a credit agreement. They'll be telling me they're not a bank next. No lending going on here. The court was helpful too.

Hi benmills,

Remember this AOS is relating to the Data Protection Act S.A.R - (Subject Access Request) enforcement claim and NOT to my ongoing battle to have the Default removed... which is why I'm interested to see how they can defend the indefensible on this one!

STILL waiting to hear about allocation of the Default Removal claim, which should be with me shortly.

Glad to hear you've had success with my POC - I'm in Court with Barclays NEXT Friday, if anyone else is interested in dipping in; (the end of a 6 month saga...)

http://www.consumeractiongroup.co.uk...k-default.html

[car2403]

Ok, now I'm angry with HMCS as well;

Notice of Case Management Conference

TAKE NOTICE that the Case Managment Conference will take place on 10 March 2008 at 11:40 at XXXX County Court.

When you should attend

30 minutes has been allowed for the Case Management Conference

Please Note: This case may be releasted to another Judge, possibly at another Court

Special Directions may be required rather than standard small claims.

Court considers stay as Bank Charges case may be relevant.

Length of hearing and track to coincide

Now, I like this; "Special Directions may be required rather than standard small claims" - seems this Court may have "grown some b*lls"!

I don't like this; "Court considers stay as Bank Charges case may be relevant" - er, "excuse me Sir, how can the test case apply to a Store/Credit Card account?"! I wonder if GE have asked for this, as I haven't seen their AQ submissions... Surely this won't be stayed?

[car2403]

Originally Posted by car2403

Remember this AOS is relating to the Data Protection Act S.A.R - (Subject Access Request) enforcement claim and NOT to my ongoing battle to have the Default removed... which is why I'm interested to see how they can defend the indefensible on this one!

And here's the Defence;

1. It is admitted that the Claimant has an account with the Defendant (trading as GE Money) for the provision to the Claimant by the Defendant of credit for the purchases of goods in B & Q Stores (“the Agreement”) (account number: ****** — “the Account”).

2 It is admitted that the Defendant received a Subject Access Request from the Claimant dated 19 November 2007.

3. It is further admitted that the Defendant did not reply to the Claimant’s Subject Access Request within the prescribed 40 day period.

4. The Defendant has now, under cover of a letter dated 8 January 2008, complied with the Claimant’s Subject Access Request.

5. The Particulars of Claim state that the Claimant has suffered damage as a result of the Defendant’s failure to comply with the Claimant’s Subject Access Request. It is claimed that the damage caused is: “additional costs incurred due to additional correspondence and time spent preparing documents and seeking legal advice”. It is not admitted that the Claimant has suffered damage and the Claimant is put to proof in this respect. The Defendant further asserts that such costs are not recoverable under the Small Claims track as set out in CPR 27.14.

6. In the premises, it is denied that the Defendant is liable to pay to the Claimant
£120, whether as alleged or at all.

Surely it's up to the Court to decide if the damages should be allowed, hence the "at the discretion of the Court" part of the Data Protection Act S.A.R - (Subject Access Request) enforcement POC...

How can they admit they didn't reply in the prescribed period, then deny that I've suffered damage - it's one and the same thing!

AQ to be returned by 3 March.

Should I apply for Summary Judgment?