Thread: Default removal, plus compensation **SETTLED**

This was NOT an action for the recovery of bank charges, this was an action for the removal of a Default from my credit file, along with compensation under The Data Protection Act. I recovered my charges last year, but didn't notice the default at the time. Of course, Abbey refused to remove it, so I had to sue them. I tried to keep my claim as straightforward as I could, keeping it as close to a normal bank charges claim as possible. I haven't bothered to post the usual pleasantries which traditionally go before a court action, I'm sure everyone reading this can imagine how that went. I was claiming £4,828 as compensation, and the amount finally agreed on was £1,828.73 including costs. The reason for the lower settlement is that when they settled my original charges claim they neglected to offset the amount of the overdraft with the amount of charges, so we agreed to do that this time. I suppose I could have argued it in court, but frankly I couldn't really be bothered with a trip to London. Anyway, the end result is that the default was removed in its entirety, and I got about £1,600 compensation for my hassle, which is ok..

This demonstrates that it is perfectly possible for anyone to slightly modify the standard CAG templates to raise an action asking for the removal of a default. I see no reason why a bank should be any less reluctant to fight this in court than a normal bank charges claim. I think the important thing if you're looking for compensation is that you need to be able to give a proper breakdown of the actual loss you've suffered, as opposed to simply plucking a figure out of the air.

Incidently, the lady I dealt with at Abbey was someone I'd encountered before, and the negotiations were entirely amicable and professional.

Anyhoo, my POC went thus:

Particulars of claim
1. The claimant, Robertxc held a current account with the defendant, Abbey National plc, since before 1st of September 2002 until the middle of 2005, the account number being 29569xxx.

2. Between 1st September 2002 and 31st August 2004, the defendant deducted various amounts from the account in respect of charges levied if a cheque or direct debit payment was returned unpaid because the specified overdraft limit had been exceeded.

3. No admissions are made by the claimant as to the incorporation of any term into the contract between the claimant and the defendant purporting to entitle the defendant to levy these charges. If the defendant is able to establish that the contract did contain such terms, the claimant will contend that these charges are unenforceable at law, being penalty charges designed to penalise the claimant for a breach of contract and generate profit for the defendant rather than being liquidated damages designed to compensate the defendant for the actual loss occurring to the defendant as a result of the breach. The sums unlawfully removed from the claimant’s account are detailed in the attached schedule and totalled £2,616.00.

4. The claimant commenced legal proceedings against the defendant for the recovery of £2,616.00 in the latter part of 2005, with the defendant ultimately settling in April 2006 for the entire amount claimed, plus interest and costs, after which, the claimant’s account was closed. At this time, the claimant became aware that the defendant had placed a ‘default notice’ on the claimant’s credit file at a number of credit reference agencies relating to the overdraft which had existed on the account. The level of default which the defendant claimed existed in their default notice was approximately £2,200 – some £400 less than the amount of unlawful charges which they had applied to the claimants account. The claimant asserts that had the defendant been acting lawfully in their application of charges, there would have been no default, and indeed would not even have been an overdraft. The claimant asserts therefore that the default notice amounted to a material breach of the fourth Principle of The Data Protection Act 1998:

4. personal data shall be accurate and, where necessary, kept up to date.

5. The claimant commenced proceeding against the defendant under the Data Protection Act 1998 for the removal of the default notice, or in the alternative, payment of compensation as permitted by section 13 of The Data Protection Act, to cover the claimants loss in respect of him losing the ability to obtain cheaper credit than he would otherwise be able to. The compensation was a nominal amount to cover the period from the date the default notice was posted to the 19th of June 2006. In the event, the defendant opted to pay the compensation instead of removing the incorrect personal data. This obviously means that the defendant’s breach of the Data Protection Act continues.

6. The claimant claims the sum of £4,828 as compensation for the defendant’s breach of section 13 of The Data Protection Act 1998, for the period from 20th to 3rd November 2006:

13. - (1) An individual who suffers damage by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that damage.

7. The sum claimed represents £35.75 per day, which is the amount which the claimant calculates he continues to lose as a direct result of being unable to obtain cheaper credit than he currently has.

8. Additionally, the claimant requests an order from the court under section 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:

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.

9. The claimant further claims the court fee of £120

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Excellent stuff Rob, I shall be using this myself once I've finished with the charges.

Originally Posted by noobrider

Excellent stuff Rob, I shall be using this myself once I've finished with the charges.

Good for you!

Good stuff Rob. Remind me never to cross you mate!

well done, you make it sound easy somehow, (i know it's not) reassuring thanks

Originally Posted by pugsley

well done, you make it sound easy somehow, (i know it's not) reassuring thanks

To be honest, once I'd submitted the claim I forgot all about it. They didn't submit an Allocation Questionairre or a bundle, so they were never likely to put up much of a fight anyway. I think that the legal reasonikng is sound, and there's no reason why my POC shouldn't be used by anyone else in the same position.

Hi Robert,
I'm in Glasgow myself.
I claimed £2435 in charges and intrest last year from RBS which they settled in September after receiving my lba however I received a copy of my credit files in March of this year and RBS had defaulted me for £2560 in June 06.

I wrote to RBS asking them to remove my default as had they not charged me I would have never been over my £100 agreed overdraft in the first place but they are not playing ball so it looks like court action to have it removed which is how I came across your post.

Currently there is still £280 outstanding with a DCA working for RBS, the thing is in April last year when I first got all my statements the balance was only £2475 so this £280 is obviously just more and more interest (and probably charges) that has been added on since April 06 to now.

Do you have any advice about making a claim in the Sheriff Court to have a default removed which was actually slightly more than the amount of charges I was actually refunded, I see your charges totalled much more than the default amount so I'm not sure if I could proceed in the same way you have?

Any advice you could offer would be greatly appreciated!

mrs fezza

You have resurrected a really old thread. Where is your thread?

Originally Posted by mrsfezza

will you have a look at my thread please and help me

thanks

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