Hi,

Looking to hear if anyone outside Scotland used my case in court and managed to get some feedback from a judge.

The case will be up before the Supreme Court and is expected to put an end to wrongful defaults.

Also if anyone is in a position to speak about the number of UK citizens currently struggling with a default against them, my legal team would be happy to hear from them.

Any stories about the damaging effects of a default too would be welcome.

I've a thread on default issues but I thought I'd try and tap into some of the legal brains on here.

Cheers,

Richard

Hi Durkin I know that the Brandon case is also to be appealed on the 3 Feb 2011, not too long now.

Hi,

I had my credit rating spoilt by a wrongfully issued CCJ 3 years ago. I've since been to court to have the CCJ struck from my record and am fighting for damages at the moment. Although your case is Scottish law, the references Sheriff Tierney made to Kpohraror v Woolwich Building Society 1996 in his judgement have been included in my initial discussions about damages. The loss of credit facility has financially crippled me for the past few years.

Not sure how things are going to pan out for me as I am currently fighting the case myself. Any advice you can give would be most welcome.

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Well done getting the CCJ removed. You're now entitled to £8K as per Kpohraror. If you're looking for more than that you need to prove your losses. These losses must also have been reasonably forseeable. Try and deal with the people that wronged you directly. They may be better off paying damages than defending. (HFC Bank are discovering that with my case but I guess they'll pass it all on to PC World anyway)

If you keep things within the small claims court, you'll only be allowed £5K. Beyond this there's a huge amount of stress and the added burden of not getting all your legal costs back despite being the victim.

If you do end up beyond a small claim, it may be worth mentioning to your judge that Kpohraror was financially crippled for a few hours whereas you've been financially crippled for 3 years! (I remain financially crippled after 13 years!)

My case is UK law. Feel free to refer to it too. It should make more sense once the UK Supreme Court has dealt with it.

I hope you're soon put back in a position you should be in had you not been financially crippled. Of course time can never be replaced. It is better the law is strengthened to prevent wrongful CCJ's in the first place. Ask your MP to have a word with the ministers on that one.

Richard.

Getting the CCJ removed was easy as I was never responsible for the initial debt. However, I anticipated and am experiencing significant resitance now it comes to establishing the total value of my loss. I am representing myself at this stage and dealing directly with the company in question, but given the Kpohraror number, and having to pay significantly higher interest rates on credit since the CCJ was issued, the claim will easily be in excess of 5k. I am hopeful they will settle out of court, but feel they will pull every legal trick in the book to try to squirm out of taking direct responsibility.

Your claim for difference in interest will run from the date you first attempted to apply for the lower interest.

You'll also have to show that you asked the wrongdoers to remove the CCJ and they'll likely argue that any additional loss above the £8K will be from the date you asked them to remove it.

As long as you can confidently prove your losses, you should be awarded them in court but a lot will depend on the judge. Many of them are exceptionally weak at basic maths.

It may be better to find a financial expert to explain exactly the way you've lost out on the difference in interest. The advocates for HFC in my case for example pretty much successfully argued that a 0% credit card is no better than a standard rate card! 0% is less than 30% isn't necessarily judicial knowledge! (Scotland is a little different though as they're not big on facts or evidence!)

Experts may cost quite a bit (over £1000)

It's a shame you didn't apply for damages with the initial action to remove the CCJ.

Hopefully though, you'll get a settlement out of court. It really is a great deal of stress outside the small claim court. If you're forced into it though, your action will benefit others that follow as your claim will become standard.

Unbelievably, since my case was decided in Aberdeen, nobody seems to have bothered claiming an easy £5K while having their defaults/CCJ's removed.

can a person claim for a wrongful default once it has been removed? in my case i received multiple (5 defaults) for the same debt from the debt purchaser and the administrator.

also, can a person claim for a wrongful default after it has expired from the 6 years? for example, i received defaults for debts where the DCA could not provide a valid credit agreement but the defaults have now fallen off after 6 years.

finally, can i claim for a default wrongly maintained by a bank, even though this was taken off after i informed them some years ago? my complaint regarding the default is still ongoing and i was awarded a measly amount of £100, £200 and £300 by the FOS for three different defaults. I have no idea why each adjudicator decided these amounts as per their enquiry because all the defaults were essentially the same issue (bank not removing default after account was settled).

thanks.

I had no intention of claiming damages as I was more concerned with clearing the CCJ. It was only post clearing the CCJ that I realised there had been significant costs incurred by these defaults appearing on an otherwise clean credit file. By you saying it was a shame I didn't make claim for damages at the same time as clearing the CCJ, are you saying this could hinder the damages claim somehow? Also, did you claim for the time you spent actually fighting your case?

Thanks for your advice thus far.

I had no intention of claiming damages as I was more concerned with clearing the CCJ.

This is what everyone is doing. Such a shame. I'm convinced it's an easy £5K.

By you saying it was a shame I didn't make claim for damages at the same time as clearing the CCJ, are you saying this could hinder the damages claim somehow?.

I suppose not. By having the CCJ removed you've mitigated your losses. If you had have compiled a claim for damages earlier, you'd have probably delayed the removal of the CCJ which was inducing the losses. It simply would have been neater to tie everything up together.

Also, did you claim for the time you spent actually fighting your case?.

I've had representation for much of the proceedings. This will be paid for eventually. My personal time doesn't have a price tag. The time can never be replaced. I am very unhappy about that. Your court officer can advise you what you can claim for. As a party litigant I think it's something like 75% of what a solicitor can charge. The main difference by far is that the solicitor doesn't suffer the stress of the victims!

can a person claim for a wrongful default once it has been removed?

I believe so. As long as it's within 5 years of being registered. So it depends on when the default is removed. However, if it was removed by legal action, I believe you then have a further 5 years to make a claim for damages.

also, can a person claim for a wrongful default after it has expired from the 6 years? .

Sadly, I think the answer is no (I've hassled my MP about this but I'd rather have an MP who cares). The law as I understand it, only allows you 5 years to take legal action.

finally, can i claim for a default wrongly maintained by a bank, even though this was taken off after i informed them some years ago? my complaint regarding the default is still ongoing and i was awarded a measly amount of £100, £200 and £300 by the FOS for three different defaults. I have no idea why each adjudicator decided these amounts as per their enquiry because all the defaults were essentially the same issue (bank not removing default after account was settled).

FOS don't have much of a clue and take too long. Sadly, in Aberdeen anyway, the court tends to agree with whatever they come up with! You should be able to claim £5K (£8K+ if you can be bothered with ordinary cause) for a defaut that shouldn't be registered.

Apparently banks aren't forced to remove defaults once they're settled. I'm really angry with my MP for not sorting this. He is just one man though. Nobody in government or the judiciary seems to understand that a "settled default" is just as financially crippling as a default. Millions will realise this once they try and come out of the recession. Hopefully, by then, this new government will have it sussed.

What do we mean by the term "wrongful default"? Is this one placed on file contrary to the OFT Guidance on Defaults or a default registered because the debt was never yours in the first place?

Thanks

What do we mean by the term "wrongful default"? Is this one placed on file contrary to the OFT Guidance on Defaults or a default registered because the debt was never yours in the first place?

Probably both. Certainly the latter. Unsure about OFT. They don't seem to have any power. It's the law itself that needs to be clarified. If banks are happy to break the law, they're not going to be too sad about ignoring guidance!

If the default doesn't seem right the chances are that it is wrongful.

The OFT has shown it's teeth recently but like hens they are rare ... but it might be a persuasive authority when bringing action in court of course?

The ICO Guidance on Defaults might be interesting reading for you too and they do have some teeth!

Filing Defaults ICO.pdf

but the problem is guidence, its not law

in an employment ribunal, if the company fails to follow ACAS guidelines/code of practice, then its allmost game over

the civil courts need to adopt this prqactice in consumer debt issues and if the company fails to follow the oft guideline, the judge then throws it out at the aq stage

WE CAN ALL BUT HOPE JUDGES COME INTO THE 21st CENTURY EVENTUALLY

John, thanks for the ICO Guidance. HFC don't follow this. In fact they cried in front of both courts saying that they didn't know what to do when someone disputed a default. The highest court agreed that they couldn't possibly have known what to do!

Civil court judges can only use the law to reach their judgements. The law is so complicated that the judges can give almost any decision they like by "interpreting" it in different ways depending on the hand shake.

Guidance will not sway a civil court judge. I've tried. The MP's must turn this guidance into simple law that cannot be "interpreted".

The ICO have wasted my time. Too many people believe they are the answer. They're not. A UK Supreme Court ruling will shake things up. Not the ICO.

When an MP refers you to the ICO, they're being lazy. They need to work together to strengthen the law in favour of the victims.

Just read the Guardian article about your claim. I never realised the scale of what you're taking on and wish you every success. And not because I am a 'consumer vs the world', but because you've been treated unfairly.

Unfortunately it would seem the legal system is set up to confuse and ensure only the most resilient and determined of people have a chance of justice. Here's hoping that common sense prevails in the supreme court and your tenacity is rewarded with the right outcome.

Good luck.

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Durkin I was in court a couple of weeks ago for pre-trial hearing, to seek damages against a bank reporting inaccurate data(default) on credit file. The DDJ referred their representative to your case to rebuff their attempt a SJ. So well done for trying for the general good.I know I can use your case as reference.cheers

Excellent news. Well done. I'm really surprised that not many more folk are going for damages though. It should be quite straightforward.

Hopefully you will now lead the way since we're still tied up with the Supreme Court.

Let us know if you manage to get the reparation you're asking for. I hope so. The Aberdeen sheriff in my case failed badly to understand our claim.

Good luck.

Richard

Thanks Richard, the down side to claiming for damages is that 99.9% of time the case will be transferred to the fast track. Mine was and just today, a mate of mine who was in court for an allocation hearing had her case allocate to fast track even though Amex and her both requested SCT. That might be what is holding some victims back.My friend was even told by her solicitor that it was too complicated a case to try to win. This just shows the level of interest and knowledge solicitors have on consumer laws.

Are you able to say when your appeal is being heard in England?Also any other case laws you might have in your armoury relating to this fiasco?

Ah! Good point. I had no idea.

The bank won't let you claim the "easy £5K", without first making you shell out for it! Very cunning. Gives the lawyers a slice of the reparation too.

(Edit - actually you're saying it's the judges themselves that are fast tracking the claims. Interesting. Stinks a bit. Perhaps it's just slopey shoulder syndrome in the absence of case law. Perhaps its the handshake. The banks are at it for sure and they are being aided by mysterious sources within the government)

It's complicated because there isn't really any case law that's relevant to the modern day.

Kpohraror v Woolwich Building Society backed up the claim for damage to general creditworthiness. He was screwed just for a few hours I think. I was screwed for the full duration (and more).

Here's the link to the Aberdeen Judgement.

http://www.scotcourts.gov.uk/opinions/A187_04.html

Take from it, what you will.

During my experience, I've noticed lawyers are very keen to fit their cases to match previous ones. In the appeal court, one of the judges had queried the relevance of a case. Personally, I queried the relevance of just about every one. My representatives had a shed load of case law that was irrelevant, as did the bank. It took 6 days to wade through, despite me wanting to keep it simple. They make it seem complicated to earn more. It isn't. The banks are crooks.

When my "representative" suggested that there was no case law regarding my specific claim for damages, the judges all had blank looks. They didn't know what to do. They simply decided to go with the banks advocates. That is why it is difficult. The judges themselves don't have a clue how to judge novel cases.

It's necessary for the Supreme Court to lead the way.

My appeal will be heard at the end of this year at the earliest. The standard waiting time is about 2 years. It's a ruling that the UK so desperately needs.

What we have at the moment is the debacle of the appeal judgement in Edinburgh which only confirms that one is entitled to £8K if you can prove (and plead very carefully) that there has been a wrongful default.

I understand you have a better chance in England. I can't explain why on here but I'm happy to be getting a chance in London to finally get justice for the consumer.

I hope you will be allowed to present a very simple case. The other side will try and make it complicated.

Have you told your MP what you're up to? It would be much better if we just had some decent laws to begin with.

Good luck.

Richard.

Richard,

I tried over 2 years ago to get some help from my local tory MP but he suggested I speak to the British Legion for help when her secretary realised I was in the british forces previously. Its a joke I would say because it seems like a 'disease' which if you have not experienced first hand you tell yourself, it is due to the victims life style etc.

A solicitor I spoke with 2 years ago actually told me that his current partner had experienced ID theft whilst backpacking across Asia in 2006, and when she got back to the UK and tried to buy a flat she found out she had been defaulted wrongly. When she called the bank to report it ,she was told to use some of her deposit for the proposed purchase to pay for it and she paid over £6,000 just to avoid the stress and to allow the mortgage to go throw. Can you believe that.

The fact is 99% of the time when people are GENUINELY defaulted wrongly they just pay up if the have the money.

Thanks for the link to your case by the way, and good luck with your preparations with the appeal

Cheers,

Ticson

Hi Tiscon,

British Legion could be a good ally to infiltrate the various lodges that the bankers may be part of. Officially though it is the government that is supposed to legislate. Your MP should try and apply himself better.

I'm afraid I was guilty for the first 4 years of my default for just paying up (although I repetitively asked the bank to remove it). It's much easier!

The problem arose when I was unlucky enough to be in a situation where the default prevented me raising enough for a deposit for a family home. In a rapidly rising market, that was particularly malicious. I had no idea the law would be so slow and ineffective.

The banks believe they are above the law. The government certainly appears to be on their side. Our only hope seems to be Supreme Court intervention.

I can see why some folk are driven to crime. We're effectively fighting criminals here. Criminals backed by our government!

Lawyers just milking the situation haven't helped.

Cheers,

Richard

The British legion in a perfect world would be a good ally to help to lobby, however, it being a charity it can not been seen to use its 'limited' resources especially at a time when hundreds of soldiers need their help to fight an undefeatable opposition. I spoke to a volunteer briefly but the concensus I gathered is that they hear of such cases from time to time but it is not rampant enough to warrant their effort. Even the ex-met commissioner Sir Blair said before the previous elections that the government is not doing enough to combat id theft and the issues it causes to victims but again, not even people even though just this year alone CIFAS have over 50,000 complaints.

I know your case is not id theft related however, the effect is usually an unwarranted default and then CCJ.

Cheers,

Ticson

I have just been through FOS for compensation for false default claim BoS claimed that a mortgage payment had not been made when it had - now going to County Court and intending to use Durkin. Happy to give further details

Hi King,

If FOS have ballsed up your claim you may struggle to keep things in the Small Claim Court.

Beyond this court, there's plenty of stress and the likelihood of "irrecoverable" fees.

Richard.