car2403 -v- GE Capital Bank (Default removal)

[car2403]

B&Q card that I fell behind with that has been sent to Lewis Debt Recovery for collection - default on my credit file

 

I'm sending a CCA request off today to see what I can get out of this, hopefully removal if all goes well.

[car2403]

Response from Lewis;

 

Dear car2403.

GE Capital Bank A/c Number XXX

 

Thank you for your recent letter. I have enclosed a copy of the Credit Agreement as requested. We have requested a statement of account from our client GE Capital Bank for whom we are working on behalf of. The amount owed has not been sold and is still owed to GE Capital Bank PLC.

The balance owed on this account when passed to ourselves was £X. The balance is now £Xdue to monthly payments of £X being allocated to the account from yourself.

Please do not hesitate to contact us should you require any further information.

Yours sincerely,

 

And here's the agreement they've included;

 

 

Point 9, where the signature has been blocked out reads;

 

This is a Credit Agreement regulated by the Consumer Credit Act 1974.

Sign it only if you want to be legally bound by it's terms.

Signature(s) of Customer(s);

 

Now, at first glance all seems to be covered - but, I can't see any date next to the signature and the "Signed for and on behalf of GE Capital Bank Limited" signature box also doesn't have a date. There is a date/time next to the "Application for an additional card" box, but this isn't signed and clearly relates to that box and not the entire agreement, IMHO.

 

Could this mean that the agreement wasn't properly executed?;

 

"When you enter into a consumer credit agreement regulated by the 1974 Act, the agreement must be in the proper prescribed form (as set out in the Consumer Credit (Agreement) Regulations 1983, SI 1983/1553). This requirement is designed to protect the debtor, as the prescribed form contains important information and details of debtor protections and remedies under the 1974 Act.

The agreement must also be properly signed by both parties. You are legally entitled to a copy of the agreement (ss.62-63 of the 1974 Act).

 

If your agreement is not in the proper prescribed form or was improperly executed (signed) it may only be enforced by order of the court (s.65(1), 1974 Act); it may be that the agreement is not enforceable at all (subject to the discretion of the court)."

 

They also haven't sent a copy of the Default Notice.

 

I think I'll wait for the statement of account to come through before writing to them to tell them my opinion on this?

[car2403]

In the OFT's document called "Cancellable agreements", (http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/oft018.pdf) under "Form and content of cancellable agreements"/"Signatures", it states;

 

Signatures

All agreements are to be signed by both customer and trader, or their representatives,

and the date of signature entered. The customer’s signature and its date must be inside a

box. This box can be of any size and appear anywhere in the agreement, but the wording

inside it must be easily legible and must follow that for the appropriate type of

agreement as set out in Appendix 2. The signature of the trader and its date must be

outside the customer’s signature box. Similarly the signature of any witness, and its date,

must also be outside the customer’s signature box.

[car2403]

Nothing further from the CCA, 12+ days in now - I've paid this month's payment, next one is due 25th September which is the 12 days + 30 day period so I'm still waiting to see what happens with this one...

[car2403]

I sent a s.10/s.12 Surleybonds letter to GE Money about this account on 28 September - just received their response;

 

GE Money

P0 Box 700

Leeds LS99 2BD

 

09 October 2007

 

Dear car2403

 

B&Q Account Number XXX

 

GE Money cannot accept that the agreement you signed does not confirm to sections 60 and 61 of the Consumer Credit Act 1974. All GE Money’s agreements are fully compliant with the required legislation and you therefore, have no grounds on which to refuse to make further payments to your account.

 

[Really, GE Money? So, the standard form of your contract agreements meant that your unprofessional and incompetant Agents (a 17-year old lad in B&Q!) aren't capable of making mistakes and not "dating" your agreements]

 

You have also referred to Section 10 of the Data Protection Act 1998 and have requested that we cease processing any data in relation to your account with immediate effect.

 

[At least they acknowledge my request]

 

GE Money will not be taking steps to cease processing for the following reasons.

 

[We'll see about that, then]

 

The right to request a data controller to cease processing data is subject to a number of conditions. Section 10 does not apply where the data subject has given consent to the processor. It is GE Money’s position that as you gave your consent when you entered into the credit agreement with us, section 10 (1) of the act does not apply.

 

[Completely ignoring the fact that the contract was terminated due to default and that I have no right to withdraw my consent at any time!]

 

Before you entered into your credit agreement with us, we told you how we intended to use your personal information and we have not made use of your data in a way of which you were unaware.

 

[Not in dispute - but, is the contract voidable by the Court as it isn't in the right form/content required by the Act thereby making my consent voidable as well]

 

Further section 10 does not apply where the processing is necessary for the performance of the contract to which you were a party. The agreement between you and GE Money remains in force and therefore, we are able to continue to process the data.

 

[but you've terminated the agreement, Mr GE Money? How can you now rely on it for continued performance?]

 

As you may be aware, the Information Commissioners Office is responsible for administering and enforcing the provisions of the Act. They state in its Guidance headed ‘Credit Explained’, (which is available on the Information Commissioners Office’s website at Information Commissioner's Office - Information Commissioners Office) that credit providers are permitted to collect and report information to the credit reference agencies on live accounts until the account is closed and this information can be kept by the credit reference agencies for a further six years. In the same guidance, the lCO also says that where a default has been registered on an account, this can show on your credit file for six years from the date of the default.

 

[That is advice that has no legal basis]

 

Finally section 10 will only apply where continued processing would cause substantial, unwarranted damage and distress. The view of the Information Commissioner is that this only applies where the processing has caused or is likely to cause someone to suffer loss harm, upset and anguish of a real nature, over and above annoyance level without justification.

 

[Hmmm... And, defamation of character and higher than usual interest rates on other loans isn't?]

 

For these reasons we do not consider that section 10 applies in your situation.

 

[Your reasons are unfounded and this is your opinion]

 

Yours Sincerely

Robert Calver

Credit Data Management

08701242452

 

[i'm sure Robert won't mind having his number publicised!]

 

 

This is the link to the ICO document they seem to be relying on;

 

http://www.ico.gov.uk/upload/documents/library/data_protection/practical_application/credit_explained_leaflet_2005.pdf

 

Which states;

 

Your credit file may show the following:

 

A live account. This may show on your credit reference file until the account is settled or closed. It may then show on your file for 6 years.

 

A settled or closed account. This may show on your credit reference file for 6 years from the date it was closed.

 

A defaulted account. This may show on your credit reference file for 6 years from the date of the default. A default normally occurs when the terms of a credit agreement have not been met and the account is 3-6 months in arrears. When the debt is repaid, the entry on your credit reference file should be marked as settled or satisfied.

 

I think I'll need to consider my response to this one carefully.

[Goldlady]

Hi, I had exactly the same letter in response to one of our Asda cards. The first paragraph sweeps away the invalid CCA without much justification at all; the whole remainder of the letter is justifying their right to process your data - which on balance would appear to concern them far more IMO. I don't think I replied to mine - it is in the file:p

[car2403]

Just as I thought;

 

Hi

Yes a cancelable agreement should be signed and dated by both prties i it is to be properly executed if it is not it is enforceable only by order of the court section 65.

 

1983/1553

(3) The signature of the said document shall be made in the following

manner-

 

(a)

by the debtor or hirer, or by or on behalf of the debtor or hirer in the

 

case of a partnership or an unincorporated body of persons, in the

 

space in the document indicated for the purpose, and, subject to sub·

 

paragraph (e) below, the date of the signature shall be inserted in the

space in the document indicated for the purpose;

(b)

 

 

 

by the creditor or owner, or by a person on his behalf, outside any

 

signature box in which the debtor or hirer may sign and, subject to

sub-paragraph (e) below, the date of the signature shall be inserted

outside any such signature box;

(e)

 

 

 

in the case of a regulated agreement which is not a cancellable

 

agreement, the date on which the unexecuted agreement becomes an

executed agreement may be inserted in the document and in such a

case any other date specified in paragraphs (a) and (b) above need not

be inserted; and

Ill/Ix

 

Bet regards

Peter

 

 

 

 

 

 

I think this would make the agreement improperly executed rendering enforcment only possible via court order. However, having read your thread and see the alleged agreement it would seem the creditor has covered their bases with regards to providing prescribed terms. For this type of agreement prescribed terms are Repayments, Rate of Interest & Credit limit. The Regs also say a statement to the effect stating how these terms are to be determined should they not be stated already will suffice. For eg it says on the agreement 'we will determine your credit limit and give you notice of it.''

 

So, there reply has totally ignored all my arguments - being a standard letter, I'm not surprised!

[car2403]

My response;

 

I refer to your letter dated 9 October 2007.

Firstly, I notice from this letter that you quote a different account number – 633179250681XXXX. Please note that my account number is as above – 633165622788XXXX. I will continue on the assumption that this is a typographical error, therefore.

In my letter, I stated my contention that the alleged agreement between myself and GE Money does not meet the form and content requirements of the Consumer Credit Act 1974, as amended. This is because the agreement is not dated and therefore has been improperly executed under the Consumer Credit (Agreements) Regulations 1983; (1983/1553)

“(3) The signature of the said document shall be made in the following manner;

(a) by the debtor or hirer, or by or on behalf of the debtor or hirer in the case of a partnership or an unincorporated body of persons, in the space in the document indicated for the purpose, and, subject to sub·paragraph (e) below, the date of the signature shall be inserted in the space in the document indicated for the purpose;

(b) by the creditor or owner, or by a person on his behalf, outside any signature box in which the debtor or hirer may sign and, subject to sub-paragraph (e) below, the date of the signature shall be inserted outside any such signature box;

(e) in the case of a regulated agreement which is not a cancellable agreement, the date on which the unexecuted agreement becomes an executed agreement may be inserted in the document and in such a case any other date specified in paragraphs (a) and (b) above need not be inserted;”

Your response baffles my understanding somewhat, as you have failed to reply with your justification against this argument – this leads me to believe that;

1) The letter you have sent me is a standard response to this type of request and has failed to take any of the queries raised with proper consideration. (This is backed up by the fact you appear to have included another customers account number, which implies this is indeed a “copy and paste” response)

2) You have failed to justify your continued pursuance, processing and disclosing of my personal information, which was specifically referred to in my letter.

3) You have failed to comply with my Statutory Notice under s.10 & s.12 of the Data Protection Act 1998.

I find this situation totally unacceptable – a sizeable company with the resources of GE Money should not be capable of treating its customer’s genuine disputes with the arrogance that you have replied to me with.

Therefore, take notice, that I require your full response to my previous letter within the timescales provided – this means you must either comply with my request or provide your legal basis (please note that a simple denial of my argument does not suffice) before 19 October 2007 to avoid the action I have outlined in that letter.

Yours faithfully,

 

car2403

[car2403]

I have had a standard "complaint" reply to this saying that they'll investigate and come back in 8 weeks.

 

I don't think so! LBA on the way this week!

[car2403]

How's this for POC?;

 

1. I, the Claimant in this case, am a litigant in person and I make this particulars of claim statement from my own knowledge and experience.

 

2. The Defendant alleges that the Claimant held a credit agreement with the Defendant since 2003, numbered 6331656********* – that agreement said to be a regulated debtor-creditor agreement under the Consumer Credit Act 1974.

 

3. The Claimant, having conducted an audit of his Credit Reference Files held with 3 Credit References Agencies, discovered that the Defendant had recorded a “Default” against the Claimant in relation to this agreement on 23 August 2006, with an original default balance of £675.00. The latest update to this entry is dated 10 June 2007, showing an outstanding balance of £305.00.

 

4. The Claimant claims against the Defendant, in relation to this agreement and Default, in the following terms;

 

CONSUMER CREDIT ACT 1974, AS AMENDED:

 

5. On 11 August 2007, a request was made by the Claimant under s.78 of the Consumer Credit Act 1974, (herein referred to as “CCA 1974”) to obtain copies of the originally executed credit agreements that the alleged debt refers to. In addition, statements of the account should have been provided, along with any other document referenced in the credit agreement and a request to substantiate the default information recorded. The request was sent via Royal Mail with recorded delivery, enclosing a statutory fee of £1.00. Royal Mail confirms receipt of this request on 15 August 2007, which gave the Claimant twelve working days from receipt of the request, to provide said documentation, as stipulated in Regulation 2 of The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983. The deadline to comply with the request was 31 August 2007.

 

6. In a reply dated 23 August 2007, the Defendant provided an alleged copy agreement.

 

7. The Defendant has failed to supply other information as required by s.78(1);

 

“78.—(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of 15 new pence, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a) the state of the account, and

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.”

 

8. The Defendant is therefore in default of this request under s.78(6)(a) and has committed an offence under s.78(6)(b);

 

“(6) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement;

and

(b) if the default continues for one month he commits an offence.”

 

9. The alleged copy agreement provided does not have a date on which it was signed by the borrower. It also has not been dated in the “Date of Agreement” box when signed by the Creditor, or their Agent.

 

10. The agreement is not in the proper prescribed form, as set out in s.60 & s.61 of the Consumer Credit Act 1974 and the Consumer Credit (Agreement) Regulations 1983 (SI 1983/1553) made under the Act.

 

11. The agreement must be properly signed, along with a date of signature, by both parties;

 

“1983/1553;

(3) The signature of the said document shall be made in the following manner-

(a) by the debtor or hirer, or by or on behalf of the debtor or hirer in the case of a partnership or an unincorporated body of persons, in the space in the document indicated for the purpose, and, subject to sub·paragraph (e) below, the date of the signature shall be inserted in the space in the document indicated for the purpose;

(b) by the creditor or owner, or by a person on his behalf, outside any signature box in which the debtor or hirer may sign and, subject to sub-paragraph (e) below, the date of the signature shall be inserted outside any such signature box;

(e) in the case of a regulated agreement which is not a cancellable agreement, the date on which the unexecuted agreement becomes an executed agreement may be inserted in the document and in such a case any other date specified in paragraphs (a) and (b) above need not be inserted;”

 

12. The Claimant also refers to the Office of Fair Tradings guidelines on “Cancellable agreements”, under which this agreement falls in that antecedent negotiations took place with the creditor prior to the agreement being sent for signing, that signing taking place away from the creditors’ premises making the agreement cancellable as per s.67 of the Consumer Credit Act 1974 and the regulations there under, which state;

 

“Signatures

…All agreements are to be signed by both customer and trader, or their representatives, and the date of signature entered. The customer’s signature and its date must be inside a box. This box can be of any size and appear anywhere in the agreement, but the wording inside it must be easily legible and must follow that for the appropriate type of agreement as set out in Appendix 2. The signature of the trader and its date must be outside the customer’s signature box. Similarly the signature of any witness, and its date, must also be outside the customer’s signature box…”

 

13. Accordingly, due to the Claimants pleadings at paragraphs 9-12 of this statement, the Claimant avers that the agreement itself has not been executed within the terms of the Act.

 

14. In the alternative, if this honourable Court decides (which is denied) that the copy agreement has been executed, the Claimant further wishes to plead as follows;

 

15. The agreement has been improperly executed in that it does not fully comply with s.60 and s.61 CCA 1974, or the regulations made under that Act.

 

16. The Defendant is, therefore, unable to enforce the agreement without a Court Order under s.65(1).

 

17. Any application for an Enforcement Order under s.65(1) of the Act, as a result of the improper execution under the Act, should be dismissed under s.127(1)(i), due to the prejudice caused to the Claimant, namely;

a) The Claimants pleadings regarding the defaulting and termination of the account, outlined in paragraph 18-21 of this statement, specifically;

i. That the account has been improperly and unlawfully defaulted and terminated; (s.88/s.98 of the Consumer Credit Act 1974 and the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1993)

ii. This improper default and termination has effected (and continues to effect) the Claimants reputation and credit rating held by credit reference agencies;

iii. The Defendants failure to reply to, or to unconditionally comply with, a Statutory Notice issued by the Defendant pursuant to s.10 and s.12 of the Data Protection Act 1998, requiring it to remove this information from its own records and to cease from continuing to process or share that information.

b) The Claimant disputes the balance of the account, as outlined in paragraph 18 of this statement;

 

18. The Defendant disputes the balance of the account, as during the period in which the account was operating the Defendant debited charges to the account in respect of purported breaches of contract on the part of the Claimant and also charged interest on the charges once applied. The Claimant understands that the Defendant will contend that the charges were debited in accordance with the terms of the contract between itself and the Claimant and accordingly puts the Defendant to strict proof of such terms existence. The Claimant contends:

a) No such contractual provision exists to allow the Defendant to levy such charges;

b) Where there is a contractual provision that permits the Defendant to levy such charges, this provision is unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations (1999) and the Common Law of penalty because they are a disproportionately high sum in compensation compared to the cost of the purported breach; are not a genuine pre-estimate of cost incurred by the Defendant; exceed any alleged actual loss to the Defendant in respect of any breaches of contract on the part of the Claimant; and are not intended to represent or are related to any alleged actual loss, but instead unduly enrich the Defendant, which exercises the contractual term in respect of such charges with a view to profit; and

c) Accordingly the Claimant puts the Defendant to strict proof that every charge made to the account was valid and lawful.

d) The Claimant avers that any Default or Termination Notice sent would have included these charges, invalidating that Notice due to this unlawful application.

 

19. The Defendant has failed to fully comply with the Claimant’s request for information to substantiate the process taken to Default the agreement, under the original s.78 CCA request.

 

20. Accordingly, the Claimant puts the Defendant to strict proof that the agreement has been defaulted and terminated in accordance with s.88/s.98 CCA 1974 and the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1993.

 

21. Where the Defendant is unable to supply original signed certified copies of alleged Default Notices or Termination Notices, the Claimant pleads that the agreement has been unlawfully defaulted and terminated, in that, either;

a) No Default Notice or Termination Notice has been issued, the Claimant being prepared to swear on oath that no such notice was sent or received at the time of default or termination; or

b) Where the Defendant can show evidence that Default or Termination Notices were issued, such Notices are not accurate and fail to comply with s.88/s.98 CCA 1974 and the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1993, in that the Default and Termination amounts are incorrect as per paragraph 13 of this statement.

 

22. The Claimant refers to specific paragraphs of the House of Lords case Wilson v First County Trust Ltd [2003] UKHL 40;

 

Para 49;

"The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan"

 

Para 121;

"But the effect of the failure to comply with the requirements of the Consumer Credit (Agreements) Regulations 1983 was that the entire agreement under which FCT provided the loan to Mrs Wilson............... was unenforceable. The statutory bar on its enforcement extended to FCT's right to recover the total sum payable on redemption, which included the principal as well as interest."

 

Para 123;

"section 127(3) of the 1974 Act too, like sections 6 and 13(1) of the 1927 Act, was designed to protect unsophisticated borrowers. There is no doubt that they would be exposed to the risk of harassment by unscrupulous creditors if creditors could override the statute by appealing to the common law. I would prefer to say that it would be inconsistent with the statute to provide FCT with a common law remedy to redress the enrichment which Mrs Wilson has received at its expense"

 

Para 173;

"Parliament's intention in enacting section 127(3) of the 1974 Act was to make a loan, made under a regulated agreement, unenforceable in certain events. The courts cannot defeat that intention by allowing some alternative means of recovery."

 

23. The Claimant contends that the Wilson case ruling is intended to have the effect that creditors who do not have enforceable consumer credit agreements are not to be allowed to intimidate, harass and effectively blackmail debtors into paying monies that they do not have to pay by, for example, threatening to blacklist the credit records of debtors. The financial penalty for a lender not complying with the legislation is that they lose the right to any monies not already paid. The law lords considered the issue of unjust enrichment but decided that it was appropriate for the creditor to be financially penalised in this way.

 

EFFECT OF FAILURE TO DEFAULT AND TERMINATE AGREEMENT CORRECTLY;

 

24. Failure of a Default or Termination Notice to be accurate not only invalidates the Default or Termination Notice (Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give the Claimant a claim for damages. (Kpohraror v Woolwich Building Society [1996] 4 All ER 119)

 

DATA PROTECTION ACT 1998:

 

25. The Claimant contests that the Defendants continued processing of his data is an unwarranted act and that the Defendant has failed to comply with a Statutory Notice pursuant to s.10 and s.12 of the Data Protection Act 1998. (Herein referred to as Data Protection Act 1998)

 

26. The Claimants written permission allowing the Defendant to continue processing, or disclosing, personal subject data, does not exist. The Claimant also disputes the Defendants “Defaulting” of the accounts, which is visible on his Credit Reference files, for the reasons outlined above. The Claimant, therefore, considers any Default appearing on any Credit Reference Files in relation to this alleged agreement to be wholly unwarranted and unlawful.

 

27. The Claimant is afforded principled rights under the Data Protection Act 1998, Schedule 1, Part 1 ("The Principles") in relation to the manner in which data is collated, stored and processed. Of particular note, are Principles 3, 4 and 5:

 

“3. Personal data shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed.

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

5. Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes.”

 

28. In this case, the Defendant is processing data without consent. Consent in this case meaning the lawful right to process data, with permission, with the Credit Reference Agencies – that information being “publicly available”.

 

29. The claimant asserts therefore that any Default/Termination Notice amounts to a material breach of the fourth Principle of The Data Protection Act 1998.

 

30. The Claimant, therefore, commences proceedings against the Defendant under the Data Protection Act 1998 for the removal of any Default/Termination Notice, or any information relating to the agreement that will, or may, cause prejudice to the Claimant.

 

31. This is confirmed in Principle 2 of the Data Protection Act, which states:

 

"2. Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes."

32. The Claimant wishes to emphasise the term "specified and lawful purposes" as in ‘those specified within the contract’, and no more, and also emphasises the term "shall not be further processed".

 

33. After seeing other cases being handled, the Claimant is aware that Financial Institutions are claiming that they have a “legal right” to maintain this type of adverse entry for up to six years. When challenged, they are unable to quote the exact Statute that includes this so-called “legal right” - they in fact remain remarkably quiet when questioned about this. Only after insistence of disclosure do they eventually concede that, whilst they have no statutory right, it is “standard industry practice” but they added that they are “allowed to by Law”. After further challenges, they finally admit that unless this was a County Court issue, their term actually referred to contractual Law, but continued to emphasise that it was “standard industry practice to record default entries for six years.” In this case, no such contractual provision exists, so reliance on any contract should fail under the DPA 1998.

 

34. After scrutiny of all the relevant legislation, including the Consumer Credit Act (as amended), the various Financial Services Acts and the Data Protection Act, etc., it is clear that there is absolutely no legislation that allows a lender or supplier (e.g. the Defendant) to collate, process or distribute any other information unless there is express written permission from the data subject.

 

35. In fact, Section 10 of the Data Protection Act awards the real authority, regarding privacy of data, to the data subject, not the Data Controller. The Act is also very clear as to the rights of the data subject in respect of withdrawing permission to continue data processing and disclosure:

 

“10. - (1) Subject to subsection (2), an individual is entitled at any time by notice in writing to a data controller to require the data controller at the end of such period as is reasonable in the circumstances to cease, or not to begin, processing, or processing for a specified purpose or in a specified manner, any personal data in respect of which he is the data subject, on the ground that, for specified reasons-

(a) the processing of those data or their processing for that purpose or in that manner is causing or is likely to cause substantial damage or substantial distress to him or to another, and

(b) that damage or distress is or would be unwarranted.”

 

36. However, there is some exclusion provisions for Data Controllers, and Section 10 does continue with various exceptions to subsection (1) above, and these are quoted, in full, below:

 

“10. - (2) Subsection (1) does not apply-

(a)in a case where any of the conditions in paragraphs 1 to 4 of Schedule 2 is met, or;

(b)in such other cases as may be prescribed by the Secretary of State by order.”

 

To paragraph (b), I can only presume that the Defendant has not applied to HM Secretary of State for an order allowing you an exclusion, which leaves the Defendant with the only remaining possibility of requesting an exemption under paragraph (a).

 

So, we must turn to the exemptions permitted in paragraph (a) to find where the Defendants Data Controller may invoke his perceived exemption to the Data Protection Act, namely, those listed in paragraphs 1 to 4 of Schedule 2. These exemptions are, in full, below:

 

“1. The data subject has given his consent to the processing.

2. The processing is necessary-

(a) for the performance of a contract to which the data subject is a party, or

(b) for the taking of steps at the request of the data subject with a view to entering into a contract.

3. The processing is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by contract.

4. The processing is necessary in order to protect the vital interests of the data subject.”

 

It is the Claimants contention that the Defendants supposed right of obtaining an exemption is not contained within any of these paragraphs – taking each in turn with notation to give a clearer explanation;

 

1. The data subject has given his consent to the processing.

That consent, as no legal agreement exists, therefore, also does not exist.

2. The processing is necessary-

(a) for the performance of a contract to which the data subject is a party, or

(b) for the taking of steps at the request of the data subject with a view to entering into a contract.

For both (a) and (b), there is no contract in existence.

3. The processing is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by contract.

 

According to the Information Commissioners Office (Information Commissioners Office), exemption 3 includes all other statutory obligations for which the interests of national security and welfare override personal privacy. These obligations allow for the provision of data to Official agencies and organisations, e.g. disclosure to crime prevention agencies (Police, Intelligence Services, etc), official Government agencies (DVLA, DSS, Passport Agency, etc.) and health authorities, etc., and for any other purpose not agreed within a civil contract.

 

The three major credit reference agencies are not Government bodies, nor official agencies, but are “for-profit” companies. None of these three agencies are listed in the appropriate Data Protection Act Schedule that names the specific organisations that are permitted any such exemption rights.

 

"4. The processing is necessary in order to protect the vital interests of the data subject.”

 

With reference to the Information Commissioners Office again, this is interpreted as “anything that affects the data subject as a matter of life and death”. This clause is included in the Data Protection Act to permit data, like medical records or contact details, being disclosed in emergency situations. The Claimant does not believe that this case could be described as anything like a matter of life or death.

 

So, it is clear to see that there is neither statutory provision permitting the Defendant to assume continued processing rights of the Claimants data at his discretion, nor any exemption. The Claimant can then only assume that the Defendants is relying on the Common Law – as already discussed, above, no such contract is in existence.

 

37. The Claimant argues, therefore, that due to the non-agreed disclosure of personal data to third parties by the Defendant, without express written permission from the Claimant, that the Defendant has committed a criminal offence under s.35 DPA 1998.

 

38. The recording of “Default” information by the Defendant, without consent, against a credit file without having an agreement regulated under the CCA 1974, or a legal contract, or any processing by the Defendant of that data, in any manner, which would be unfair or inaccurate or which in any way, would breach The Data Protection Act 1998.

 

39. The Claimant requires that the Defendant cease from processing such data, or else that the Defendant does not begin to process any personal data of which the Claimant is subject insofar as that processing involves the communication or passing of personal data of which the Claimant is the subject to any third party and insofar as the said data relates wholly or in part to the implementation by the Defendant of alleged defaults or contractual breaches, or breaches contrary to The Common Law.

 

40. The Claimant argues that the processing or continued processing by the Defendant of the said data will affect the Claimants credit rating and reputation and cause substantial damage and/or substantial distress to the Claimant and other family members in addition to that which has been caused to date. And that as the processing of the said data in the way referred to in this Claim would violate both the Principles and Data Subject’s rights of The Data Protection Act 1998, to do so would be both unwarranted and unlawful.

 

41. Additionally, the claimant requests an order from the Court under s.14(1) 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, from the Defendants internal records and order the Defendant to cease from processing, or, where that processing is already taking place, order the cessation of such processing with third parties to the agreement, such as 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.

 

42. The Claimant further claims the Court fee of £65.

 

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

43.1. 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 NLD 14 July 1998 and Kpohraror v Woolwich Building Society [1996] 4 All ER 119;

43.2. 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;

43.3. Costs, at the discretion of the Court

 

Statement of truth;

I, the Claimant, believe all facts stated to be true.

 

Signed,

[Having_A_Knightmare]

Good luvk..Subbing

[car2403]

Another letter from GE Money; (next reply)

 

Dear car2403,

 

I write further to our letter dated 22 October 2007.

 

I am sorry that we are not in a position to resolve your complaint at this time. This is due to ongoing investigations with our Legal Department.

 

I will contact you again witin 4 weeks.

 

In the meantime , should you require any further information, please do not hesitate to contact me on my number below.

 

Sarah Wainwright

Customer Resolutions Team

0870 125 2545

 

Oh good! So I wait around ANOTHER 4 weeks for your investigations to be completed then you'll just do what I asked in the first place, will you? Fantastic... I'll just sit around waiting, suffering further damage because of your ineptitude and keep my fingers crossed then! NOT!

[car2403]

N1 is in the post to my local Court...

[car2403]

Claim issued;

Issue date - 20 November

Served date - 22 November

Response date - 6 December

[car2403]

Acknowledgement of Service received with intention to Defend in full - they have until 20 December to submit a full Defence.

 

I also sent a Data Protection Act S.A.R - (Subject Access Request) to them dated 19 November, with Recorded Delivery confirmed - they have 40 days (2 January) to comply with that.

 

Just in case they don't comply with that, I'm also sending this to their Solicitors;

 

SALANS

MILLENIUM BRIDGE HOUSE

2 LAMBETH HILL

LONDON

EC4V 4AJ

 

car2403 –v– GE Capital Bank Limited

Claim No: 7*******, in the Morpeth and Berwick County Court

Defendant’s Reference: ********

Dear Sir/Madam,

 

CPR REQUEST FOR INFORMATION

 

I, the Claimant in the above case, acknowledge receipt of your Acknowledgement of Service.

Given that this matter is now the subject of legal proceedings, you are obliged to disclose under the Civil Procedure Rules, the information and documents detailed below. The information must be furnished within fourteen days of the receipt of this letter. If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an Order enforcing your compliance will be sought.

1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened.

2. All records you hold on me relevant to this case, including but not limited to:

a. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor.

b. Where there has been any event in my account history over this period which has required manual intervention by any 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 account held with GE CAPITAL BANK.

c. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

d. Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

e. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

f. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

g. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

h. A list of third party agencies to which you have disclosed my personal data and a summary of the nature of the information you have disclosed.

i. Copies of statements for the entire duration of the credit agreement.

3. Any other documents you seek to rely on in court.

I will require this information within the next fourteen days. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to frustrate proceedings and denying me the opportunity to file a complete claim.

I must make you aware that this information has also specifically been requested from your Client under a Data Protection Act Subject Access Request under s.7 Data Protection Act 1998, under which they must provide this information before 2 January 2008 in any case.

Yours sincerely,

[car2403]

Just received a FINAL DEMAND for payment from Lewis Debt Recovery - remember them? They were the original DCA that I sent my CCA request to on 11 August and they replied with that non-credit agreement.

 

Get this;

 

FINAL DEMAND - IMPORTANT

Outstanding Balance - £262.36

 

DO NOT IGNORE US - THE DEBT WILL NOT GO AWAY

 

To stop further action you must;

- Pay the debt in full to...

- Contact your Account Manager on... to discuss the options available to you...

 

Payment is due no later than 11 December 2007

 

FAILURE TO PAY MAY RESULT IN THE FOLLOWING RECOVERY ACTION;

- A solicitor being instructed to commence legal action in the County Court/Sheriff's Court which could result in a Judgment (CCJ) or Decree being recorded against you

- A Debt collector may be instructed to visit your home to personally collect the debt

 

Then there's a Giroslip for me to send payment.

 

Are they really having a laugh? GE Money just acknowledged service of my claim - and they've instructed Lewis Debt Recovery to continue collecing on the account? Pah!

 

I'll have to think up a suitable response to this, also reminding Lewis that the account is in dispute - and they know that as they had the Surleybond's letter from me back in September. I might include the harassment letter and something about them not having any right to visit me at home without an appointment, I won't make an appointment with them, etc, etc.

 

Imagine my fury when I opened this! (I nearly took my OH's head off!)

[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;

 

I refer to your “Final Demand Notice” issued on 4 December 2007.

 

You will see from your files that this account is “in dispute” with your Client, GE Capital Bank Limited, as I wrote to you in terms of the dispute I have with them in a letter dated 28 September 2007.

 

I am writing to inform you that this dispute still stands and has not been resolved by your Client.

 

I also wish to inform you of Court proceedings that I have issued against your Client, for the reasons outlined in that letter – these proceedings were issued by Morpeth and Berwick County Court, Claim Number 7******.

 

 

As this account is in dispute and you were aware of this and are continuing to carry out collection activity, I now feel that you are in breach of your obligations under;

§

The Office of Fair Tradings Collection Guidelines – s2.8;

o

“i. failing to investigate and/or provide details as appropriate, when a debt is queried or disputed, possibly resulting in debtors being wrongly pursued”

 

§

The Banking Code – s.13.6

o

“k. not ceasing collection activity whilst investigating a reasonably queried or disputed debt.”

§

Your Consumer Credit License

 

As such, I must ask you to take notice that you must cease all collection activity with immediate effect. The alleged credit agreement your client is relying on does not provide you with permission to continue to contact me regarding this account, either by post or by personal contact, be that by telephone or visits to my property. In fact, OFT rules and regulations clearly state that you can only visit me at my home if you make an appointment and I have no wish to make an appointment with you. There is only an implied license under English Common Law for people to be able to visit me on my property without express permission; the postman and people asking for directions etc (Armstrong v. Sheppard and Short Ltd [1959] 2 Q.B. per Lord Evershed M.R.). T herefore take note that I revoke license under Common Law for you, or your representatives, to visit me at my property and if you persist in sending "doorstep callers" to my home, you will be reported for harassment and be liable for damages for a tort of trespass. You would also be liable for conspiring in a tort of trespass by acting in defiance of my instructions and sending someone to visit me nevertheless. Should it be necessary, I will obtain an injunction from the Court.

 

I also deem any further collection activity, of any nature that involves contacting me in relation to this account, an act of personal harassment, for the reasons outlined in this letter. Please ensure that your system is updated to reflect this, as I will bring any further letters or phone calls to the attention of the Police, to whom I will make a formal statement regarding your conduct given I have already warned you your behaviour causes me to feel harassed.

 

I am of the view that your continued harassment of me puts you in breach of Section 40 of the Administration of Justice Act 1970, and the Protection from Harassment Act 1997.

 

If you continue to harass me by calling me, you will also be in breach of the Communications Act (2003) s.127 and I will report you to OFCOM, Trading Standards and The Office of Fair Trading, meaning that you will be liable to a substantial fine.

 

Be advised that any further telephone calls from your company will be recorded and used as evidence in any further formal complaint.

 

Yours faithfully

 

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?...

 

[car2403]

I've received 2 letters from GE today which have confused me;

 

 

29 November 2007:

 

 

I write further to our letter dated 13 November 2007.

 

[i haven't sent a letter dated 13 November!]

 

Thank you for your patience whilst we have been reviewing your complaint.

 

[Patience? I've issued a Court claim against you!]

 

The concerns you raised relating to the above Credit Agreement have now been investigated. Please accept my apologies that the account number was incorrectly quoted on our previous correspondence dated 9 October 2007.

 

[blah, blah, blah...]

 

You have stated in your correspondence that the signed Credit Agreement does not meet the form and content requirements of the Consumer Credit Act 1974. Please find enclosed a copy of your signed credit agreement. You will note that the date in section 8 has been highlighted for your ease of reference. The highlighted area on your credit agreement details the time and date that you entered into the above legally binding contract with Comet and GE Money.

 

[i somehow must have known this argument was coming - (call me psychic!) take another look at the agreement, as this date/time isn't dated by me nor is it in the "Date of agreement" box, so only relates to the "Application for an Additional Card" box;[/i]

 

 

And here's the agreement they've included;

 

Now, at first glance all seems to be covered - but, I can't see any date next to the signature and the "Signed for and on behalf of GE Capital Bank Limited" signature box also doesn't have a date. There is a date/time next to the "Application for an additional card" box, but this isn't signed and clearly relates to that box and not the entire agreement, IMHO.

 

Could this mean that the agreement wasn't properly executed?;

]

 

I note your comments surrounding the disclosure of your personal information. GE Money operates their accounts in accordance with the Data Protection regulations set by the Financial Services Authority. As a business we are never complacent around the disclosure of customer data. Our staff are thoroughly trained and stringent checks are set in place to ensure adherence to these policies.

 

However, when a payment is not received the terms and conditions of your credit agreement are breached. When such a breach occurs GE Money reserve the right to pass customer information to 3rd party agencies for recovery of any outstanding amount. These parties work in partnership with GE Money and conform to agreed standards.

 

[Oh yeah, that unenforceable agreement you refer to... I get ya!]

 

Therefore, in light of the above information we believe your claims to be unmeritorious and your account to be valid and enforceable.

 

[Lets see what a Judge thinks then...]

 

Whilst I appreciate that this might not be the outcome you were expecting, I trust that I have addressed all of the concerns that you raised. If you do remain dissatisfied with our response you may refer the complaint to the Financial Ombudsman Service. To do this you must refer the matter within six months from the date of this letter.

 

[Nah, won't bother with that one - especially as you're offering it as a solution... We'll just go straight to Court, I think!...]

 

I enclose a copy of the Financial Ombudsman Service’s explanatory leaflet. Should you require any further information, please contact me on my number below.

 

Yours sincerely

 

and;

 

 

10 December 2007:

I am sorry that we are not in a position to resolve your complaint at this time. The reason that it is taking longer than expected is that we are awaiting further instruction from our legal representatives.

 

I expect to be able to provide a full response to you within the next 2 weeks. Should you require and further information in the meantime, please do not hesitate to contact me on mg number below.

 

If however you are dissatisfied with this delay, you now have the right to refer your complaint to the Financial Ombudsman Service. To do this you must refer the matter within six months from the date of this letter. Full contact details are enclosed.

Yours sincerely

 

I have no idea what this second letter is going on about.

 

I'm surprised they are even corresponding considering they just acknowledge the Court claim? It could be because these letters have been around since before the claim was issued, so I don't know where Royal Mail have been with these... Oh well, I won't bother replying, but I now know what their Defence (if you can call it that!) will be...

[powerful_rogue]

I refer to your “Final Demand Notice” issued on 4 December 2007.

 

You will see from your files that this account is “in dispute” with your Client, GE Capital Bank Limited, as I wrote to you in terms of the dispute I have with them in a letter dated 28 September 2007.

 

I am writing to inform you that this dispute still stands and has not been resolved by your Client.

 

I also wish to inform you of Court proceedings that I have issued against your Client, for the reasons outlined in that letter – these proceedings were issued by Morpeth and Berwick County Court, Claim Number 7******.

 

 

As this account is in dispute and you were aware of this and are continuing to carry out collection activity, I now feel that you are in breach of your obligations under;

§

The Office of Fair Tradings Collection Guidelines – s2.8;

o

“i. failing to investigate and/or provide details as appropriate, when a debt is queried or disputed, possibly resulting in debtors being wrongly pursued”

§

The Banking Code – s.13.6

o

“k. not ceasing collection activity whilst investigating a reasonably queried or disputed debt.”

§

Your Consumer Credit License

 

As such, I must ask you to take notice that you must cease all collection activity with immediate effect. The alleged credit agreement your client is relying on does not provide you with permission to continue to contact me regarding this account, either by post or by personal contact, be that by telephone or visits to my property. In fact, OFT rules and regulations clearly state that you can only visit me at my home if you make an appointment and I have no wish to make an appointment with you. There is only an implied license under English Common Law for people to be able to visit me on my property without express permission; the postman and people asking for directions etc (Armstrong v. Sheppard and Short Ltd [1959] 2 Q.B. per Lord Evershed M.R.). T herefore take note that I revoke license under Common Law for you, or your representatives, to visit me at my property and if you persist in sending "doorstep callers" to my home, you will be reported for harassment and be liable for damages for a tort of trespass. You would also be liable for conspiring in a tort of trespass by acting in defiance of my instructions and sending someone to visit me nevertheless. Should it be necessary, I will obtain an injunction from the Court.

 

I also deem any further collection activity, of any nature that involves contacting me in relation to this account, an act of personal harassment, for the reasons outlined in this letter. Please ensure that your system is updated to reflect this, as I will bring any further letters or phone calls to the attention of the Police, to whom I will make a formal statement regarding your conduct given I have already warned you your behaviour causes me to feel harassed.

 

I am of the view that your continued harassment of me puts you in breach of Section 40 of the Administration of Justice Act 1970, and the Protection from Harassment Act 1997.

 

If you continue to harass me by calling me, you will also be in breach of the Communications Act (2003) s.127 and I will report you to OFCOM, Trading Standards and The Office of Fair Trading, meaning that you will be liable to a substantial fine.

 

Be advised that any further telephone calls from your company will be recorded and used as evidence in any further formal complaint.

 

Yours faithfully

 

Superb.

That has to be one of the best letters ive seen.

[car2403]

Superb.

That has to be one of the best letters ive seen.

 

Thanks PR, but I can't take all of the credit for it, as some of it was from a thread I read that Rory had posted on and other bits hashed together from the harrassment letter template, amongst others.

 

It has worked though, as I've missed the 11 December deadline and no further action...

 

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;

 

 

REQUEST FOR INFORMATION – FAILURE TO COMPLY

 

 

I, the Claimant in the case above, refer to a letter I sent to you dated 1 December 2007, a copy of which is enclosed, along with confirmation of delivery of the same to you dated 6 December 2007.

 

To date, you have failed to provide the information requested, therefore please take this as notice that I intend to report to the Court that you are trying to frustrate proceedings and denying me the opportunity to file a sufficiently particularised and complete claim, as outlined in my letter dated

 

1 December 2007.

 

Yours sincerely,

 

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;

 

 

s.7 DATA PROTECTION ACT 1984 – DATA SUBJECT ACCESS REQUEST:

 

 

FAILURE TO PROVIDE INFORMATION WITHIN PRESCRIBED TIMESCALES – PRE-ACTION LETTER

 

You have, to date, failed to comply with my Data Protection Act Subject Access Request dated 19 November 2007 – I have enclosed a copy of my original request, for your information.

If you do not comply within the 40 day timeframe provided under the Act, I reserve the right to issue Court proceedings against you to seek an Order from the Court that you do comply.

Please note, 40 days from the date of your receipt of this request is 2 January 2007 – I have enclosed confirmation of your receipt, provided by Royal Mail in the form of Recorded Delivery from their website, dated 23 November, for your information.

 

Yours faithfully

 

Given the 2 letters I received yesterday, I'd say this one is in the bag... Fingers crossed!

[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]

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 DPA SAR 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 DPA SAR 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 ICO 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;

 

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/111666-car2403-o2-wescot-dca-2.html#post1292180 (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