dx100uk

In post 14 at the end you said:

"if they fail that [they have 40 days] failure to comply IS a reason to get them into court its a legal document to be complied with.

I would suspect that that failure might be your court route, then introduce the compo claim.

but lets see."

Why have you changed your mind?

I haven't

read it again.

its a reason to get them into court...nt say immediately...

but you have to abide by the correct process.

https://www.consumeractiongroup.co.uk/forum/forumdisplay.php?404-Data-Protection

https://www.consumeractiongroup.co.uk/forum/showthread.php?387319-Failed-SAR-No-Reply-40-Days-Have-Expired-**Correct-as-at-October-2013**

agreed it is a reason to get them to court (or at least start serious negotiation).

The LBA was sent November 2016

- so I guess no problem, unless it had a time limit?

Agreed the correct process is required

- hence my request on how to start proceedings

- even if in a few weeks time.

I accept the bank could comply in the next 2 days (Sat/Sun) but think it unlikely, so think I will have to issue.

if you've already issued an LBA and never carried through no wonder they are ignoring you.

The last solicitor issued that 2 Nov 2016. The speed of the solicitors was largely outside my control. But how to issue a court order requesting they comply? What court, County or other?

well it will be a county court summons

but that old LBA can be forgotten now

you'd have to start the process again.

there are some failed SAR court claims here already

Thank you, County Court it is. Just added a para to my next draft letter stating its LBA. Thank you for your advice.

Have now read about 350pages of the SAR

- nothing to indicare a loan within the terms of the CCA.

In fact, only 1 referance to a loan stating interest rate and term,

which is a completed spread sheet page.

As the bank agree they don't have sufficient information to proceed against me, I want to proceed against them.

Main purpose is to remove the adverse creit entries with CRA's.

How do I complete the forms at the County Court, and what forms?

I would like the adverse entries removed,

can I just ask for that?

Compensation (if any) is later.

Why take action when itll disappear hopefully later this year?

I refer to post 12

dx

As stated earlier, I am waiting to re-mortgage at standard rates, I hope before June 2018.

I have writtewn to the bank - they continue to ignore me, waited 1 month for reply, (just possible they did not get my letter or I did not get the reply).

I cant see where you have any recourse through any court on anything other than the incorrect registering of a default some 2.5yrs late

and we've never seen one of those succeed

I cant see you getting any damages solely because of that.

and I cant see any other damages you've suffered .

you've already wasted £20k when it could probably been sorted by the method I've already outlined rather than playing the ive got a bigger stick than you method which never ever wins against banks.

dx100UK

Thank you for your reply.

I tried your method (SAR then write to the bank pointing out 2 year "oversight",

but as I suspected,

they ignored me,

same as they have been for the last 12 years.

Litigating at least puts things on a timetable

- albeit I may not get the result I want if you are correct in that a late default case won't succeed.

Compensation whilst nice, is secondary (see post 13).

I think the real problem is nobody at the bank wants to "own" the problem,

I guess they don't have the time/inclination to wade through the 12 years of correspondence.

With a litigation timetable the bank would have to "own" the problem - thats a reason I like it.

I agreed in an earlier post you can't win against a bank with a "my stick is bigger than yours" approach.

Unless I have missed something, it looks like the end of the road as you all see it?

you'd stand a better chance of getting that wasted £20k solicitors fees back that they spoofed you out of you on an obv dead duck claim from day one........

I don't like wasting 20k, but the main problem is the default, not the costs/compensation, if any.

cant see why

one last very polite

very short letter

maybe even to the CEO

asking him to remove the default as its preventing your families future/mortgage

as a gesture of goodwill

cant harm you.

I really, by the time you get the court claim going, go through all the inevitable hearings and delays, that the default would have already passed you by whatever the outcome

Two pronged attack. I will send a polite, short letter to the CEO as you suggest. I will include with that letter a covering note stating limitation is approaching and to avoide delay I have included the pre-action protocol letter. I trhink that covers it both ways.

Got to admit the bank is not delaying things now, got a reply to my letter dated 25/1/18 to the CEO today.

However, they refuse any removal of the late applied default.

Reason is I took the matter to the FOS in Sept 2009.

FOS found in favour of the bank.

Reason it was clear to the FOS I had a moral duty to repay the loan.

The legality of the loan was not relevant.

So DX100UK, you now have your first example of a bank not removing an incorrectly applied default notice!

As I suspected, and a few paid legal advisors have been telling me, this one has to go the court route.

I think I need a 2 pronged attack.

Maybe pre-main action and then main action?

Pre-main action for a court order (or similar) to have the late recorded default removed (then I can get a mortgage on standard terms),

then main action for compensation (if any).

What does the group think of that, and what kind of county court documents do I need to serve?

I now have a 2 pronged attack on the go.

The first part has been heard and adjourned.

Anyone know definitely if it is OK to post here with prejudicing either party?

I don’t need further advice at the moment, just for information of others if interested.

yes ofcourse you can

I needed to find a cheap way of stopping the CRA reports of a default and stopping the limitation process.

I considered an injunction requesting the bank be prevented from informing CRA’s until a full hearing could take place as a possible way forward.

An injunction was issued and the hearing took place on 1 March 2018.

The bank was represented by a Barrister and I was LIP.

The bank pointed out several serious procedural errors in my injunction document, but the judge gave me leave to fix the issues and re-issue.

Overall, I was well and truly “outgunned” by the Barrister.

The judge narrow the issues to:

A) Did I have a loan?

B) If I had a loan, was the agreement correctly or incorrectly executed?

C) He had not heard of the ICO guidance.

For A) he concluded he was very heavily leaning towards the event I did have a loan.

His basis was as the bank stated, they have procedures in place to ensure a loan can only be drawn down when they have the correct paperwork.

Most importantly also, the FOS service stated they had seen evidence I had a loan (I have yet to see that evidence).

With both these in place, my argument of “no paperwork, no loan” was not likely to be accepted.

For B) it was simple, he was leaning towards saying a loan can only be correctly or incorrectly executed.

My argument that a third route, of no paperwork no loan, hence you can’t default on something that doesn’t exist was not accepted.

The bank agreed it was an incorrectly executed document, but still able to be reported to the CRA’s, and they produced case files showing that

– albeit all those cases had either an incorrectly or correctly execute agreement. None covered this situation of no agreement.

For C) He had no knowledge of this ICO document.

He requested I obtain a copy that was in force at the time the loan was taken out (the current version would not be acceptable) when he would listen to further arguments. Difficult to get, but I now have a copy.

The judge adjourned the final hearing and any decision so both sides could obtain more evidence.

He would not be the judge at the next hearing as it was not his specialism.

I contacted the FOS and asked for a copy of my file – they refused on client confidentiality grounds. I put in a SAR that expired about 3 weeks ago.

They keep telling me they will comply using a secure web server for me to access and download from, but so far have not.

I have just now asked for paper copies, will then know if they do have technical problems or are just trying to avoid complying with the SAR.

Received a further witness statement from the bank in preparation for the second hearing.

You may recall I said I did not sign or have any paperwork proving I had a loan (I accept £20k was deposited into my bank account).

In any event the branch printer could not print more than the first page of any document to do with me (don’t know why, but it was not a hardware problem).

The bank have given an “example” agreement in force at the time of the loan.

It clearly required a signature overleaf – i.e. page 2. As the printer could only print page 1, I could never have signed it.

So long as the court accepts the branch printer was not able to print more than the first page of the document, I think I have a good case for still saying “no paperwork no agreement.” I am currently trying to raise finance to pay for a Barrister to represent me – should know in around 10-20 days time.

A follow up to previous post on this subject, which had a hearing earlier this week (Monday, before the GDPR on Friday).

As predicted here, my application was not successful. Barristers agreed the ICO document was guidance, not a requirement, and the bank advised they would not comply. My Barrister quoted the court of appeal case, saying “can’t report without stating unenforceability of same”. Judge did not accept – they can report what they like until trial or further order.

Judge accepted I was late in giving my 2nd witness statement, so I could get representation. I did not advise the bank of my intention to ask for an adjournment while I obtained advice, hence he ordered costs against me of £8.5k. Bank asked for £11.2k

Its true I did not advise bank of my application for adjournment (email sent by me to wrong email address), but on the Court form I ticked the box for the Court to advise the bank. I don’t know why the Court delayed until 2 days before the hearing. Seems strange to me I have to pay £8.5k when the court also made a mistake (assuming I had to advise bank, given I asked the Court to advise them).

The judge ordered the Barristers to come up with a joint order, which they have done. Despite what the Judge said, in that order, the bank has agreed not to report any alleged default now or in the future, without stating unenforceability of same. Historical defaults remain as is.

Hence, way forward seems to be pay the £8.5k costs and leave it at that. In another 6 years (assuming the bank follow the ICO guidance, they may well not) in 2024 it will drop off my credit file. That means it will have been on my credit record for around 12-14years in total by 2024. I don’t think that is the intention of the consumer credit act – but it is how this bank is applying it.

BTW, the bank agree they can’t litigate against me as:

a) Its passed limitation.

b) The evidence they have is not sufficient to litigate.

Alternative is to pay Barrister around £65k to litigate further. I don’t have that sum available, so it’s a non starter.

There was no signed agreement, the loan was unenforceable and as such the bank was precluded from registering defaults etc with credit reference agencies??????

Cant believe the bad advice you've been given. My advice is to stay away from lawyers - they are as bad as bankers.