Pricing a default

[car2403]

This was part of the original Judgement that was upheld on appeal by the Civil Division;

 

They admitted liability and

the master awarded damages of £5,550 with interest as general damages for the injury to the plaintiff's credit by reason of the

dishonour of the cheque and the discreditable reason given by them for so doing. The award included a small allowance for

the alleged injury to the plaintiff's credit and reputation in Nigeria.

 

The original claim was for £4,550, hence the precedent of £1,000 for substantial damages due to unlawful/inaccurate Default.

[dad]

I was refering to this bit of Lord Justice Evans's speech:

The above conclusions mean that I would dismiss both the appeal and the cross-appeal, and would uphold the master's award of general damages of £5,550. He said that it was 'somewhat coincidental', that this was £1,000 more than the amount of the cheque, although I think he meant by this that the appropriate sum by way of general damages could be calculated in that way in the circumstances of this case.

 

HTH

 

Dad

[car2403]

But surely this is still pursasive, if not binding, precedant for claiming £1k for unlawful/inaccurate Default then arguing the case when you get to Court?

 

Has anyone done - and successfully claimed - this yet?

[Paintball]

But surely this is still pursasive, if not binding, precedant for claiming £1k for unlawful/inaccurate Default then arguing the case when you get to Court?

 

Has anyone done - and successfully claimed - this yet?

 

Have you asked this Q elsewhere Car? Maybe a shout out to one of the Helpers/Mods may give you an answer. Otherwise, looks like you're about to set a precedent (I have faith in your abilities ).

 

As with my GAIN entry - which is bizarre - I may end up having to price the impact of its being on my 'credit report' for 6 or so years. I wonder whether the Kohproror case will help or if I have to research this in a different way.

[car2403]

Have you asked this Q elsewhere Car? Maybe a shout out to one of the Helpers/Mods may give you an answer. Otherwise, looks like you're about to set a precedent (I have faith in your abilities ).

 

 

Hope you haven't jinxed me, Painty!

 

 

 

As with my GAIN entry - which is bizarre - I may end up having to price the impact of its being on my 'credit report' for 6 or so years. I wonder whether the Kohproror case will help or if I have to research this in a different way

 

I'm sure we've discussed this in another thread and you can easily argue that the K case will have a "cross-read" to any adverse credit information if you can show that it is inaccurate or incorrect. (It may even be in this thread...) I still think this will be pursuasive rather than binding, which means you may have a fight with a half-decent solicitor that knows their stuff - if they bother to turn up that is!

[thesergeant]

I have read thro this helpful thread.

 

I redeemed in full a Kensington Mortgage on 31/8 - the last date of the redemption statement. This was done by telegraphic transfer and confirmed receipt.

 

On 1/9 Kensington wrote to me stating I was in arrears as I had missed a payment by £2995 and charged me £50. I called them they said terribly sorry our mistake reversed the charge. Told me there will be no default its all just an internal automated error.

 

Default was placed on my CRA file.

 

In short I wrote a number of letters. They denied it was an error and the default would stay. Eventually they removed it stating they did not agree that they breached the DPA. But they offered me £25. I calculated my expenses at £79 which I was about to claim.

 

Should I in fact be looking at £2995 + £1000 + £79 costs etc ??

[pt2537]

Ok, now did you miss any payments at all to this company?

[thesergeant]

I had one late payment (by 1 day) about 12 months prior to redemption, I was charged £50 and had a default note with CRA for this. I was up to date with all payments after that. I was up to date with all payments at the time of redemption.

 

Hope that is enough info

[thesergeant]

What they have put on my CRA is a 1 month in arrears default notice. If that makes any difference.

 

Of course I was not in arrears as the mortgage had been redeemed in full.

[pt2537]

Yes perfectly thanks,

 

well there is no default here and i cant see that they have sufficient grounds to add such to your credit file

 

three consecutive late payments maybe but not just one payment late by one day

 

you may be able to claim damages for injury to your credit rating based upon the fact that they have incorrectly added this default to your credit file but and heres the but, there is no guarantee that this would be heard in the small claims track,it may be allocated to fast or multi track and could leave you open to considerable costs should you lose

[thesergeant]

Thank you for your response ..........

 

My claim originally was for my costs they offered a derisory £25 stating they were not in the wrong.

 

I have asked for my time and costs £79 at last count.

 

However reading this thread I do not see that I can mount a claim on costs alone and would have to seek full redress as per some of the arguments in this thread.

 

A short history of my story is that I noticed the default and made a complaint via Equifax, response was Kensington admit error and will rectify. More than a month later default not removed. Letter to Kensington deny that default is an error and refuse to remove. Another letter pointing out full facts as above finally removed but deny any breach of DPA.

 

The default was for one month in arrears at £2995, which of course was a complete error as I described below.

 

As I had no current defaults on my CRA (it had taken me ages to get back to this state) it was blo*dy annoying.

 

Or is there an alternative route?

[car2403]

In kpohraror v woolwich building society [1996] C.L.C. 510 it was decided that the amount of the damages should be the amount of the cheque that was dishonoured plus substantial damage to reputation of £1k.

 

There is a cross read, in many members' opinions here, that a Default has a similar effect and should be priced according to the precedant set in that case.

 

In your case, this means the damages should be £2995 + £1000 substantial damage to your reputation.

 

IMO, this means that the balance due becomes reclaimable as damages, but as you've settled the account you can't claim it now - this doesn't mean you still can't sue for £1k substantial damages, though. A Judge will have to see it this way, however - but this is binding precedant in a County Court.

 

Paul, I agree the allocation issue is a problem, however given this is substantial law based on sound precedant in case law and is less than £5k, allocation to the small claims track is most probable. What Paul is warning you against though, the sergeant, is that its possible you may be open to costs IF YOU LOSE - given what I've said already, that's a remote possibility. (But a possibility nonetheless, so Paul is right to flag it up)

[thesergeant]

Well, well, I now find that Kensington have only removed the default from Equifax.

 

I just checked my Experian file and low and behold there is the default notice still there.

 

If I go ahead with this claim do I need to send an initial and LBA type letter. My communication so far has been for the costs incurred by me. I did warn them in the last letter (LBA) that if they did not settle with me I would lay a claim and it would cost them a lot more!!

[thesergeant]

Can I just clarify that I am not using incorrect language.

 

What is on my file is a late payment status marker, ie a number 1 in Orange indicating upto 1 payment in arrears. I have called that a default notice.

 

Are we talking about the same thing ??

 

Don't want to start this all off to find that its not the same thing !!!

[car2403]

Well, well, I now find that Kensington have only removed the default from Equifax.

 

I just checked my Experian file and low and behold there is the default notice still there.

 

If I go ahead with this claim do I need to send an initial and LBA type letter. My communication so far has been for the costs incurred by me. I did warn them in the last letter (LBA) that if they did not settle with me I would lay a claim and it would cost them a lot more!!

 

Have you checked with the other CRA's, as Experian aren't the only ones that hold this information - you'll need to go to Equifax and CallCredit as a minimum, other than Experian.

 

Can I just clarify that I am not using incorrect language.

 

What is on my file is a late payment status marker, ie a number 1 in Orange indicating upto 1 payment in arrears. I have called that a default notice.

 

Are we talking about the same thing ??

 

Don't want to start this all off to find that its not the same thing !!!

 

A Default Notice is a Notice issued under s.87 Consumer Credit Act 1974 when you are in default (small "d") of a Credit Agreement with a Creditor. A Default on your file is a result of this Default Notice process.

 

What you are referring to is late payment information recorded as a result of a failure to maintain payments as agreed under an agreement, (not necessarily a Credit Agreement with a Creditor) which is recorded as factual information relating to the way you've managed your account.

 

This case actually applies to any incorrect information processed that may effect your reputation (cross read to "credit rating") so, in theory at least, it will still apply to late payment information - if it can be shown that such late payment information is incorrect. In all essence, late payment information can have as much a detrimental effect to your credit rating as a Default can.

 

The issue you may have is that most creditors, when searching your CRA file won't take late payment information of less than 3 months in to account. Proving damage as a result of a "1" payment marker on your CRA file may be difficult.

 

Have you been turned down for credit, or offered higher rates of interest, as a result of this marker? If not, I can't see how you can demonstrate damage in your case.

[thesergeant]

Thanks for that Chris - clarified things.

 

In the alternative:-

 

What do you think of a claim for my actual costs (time, paper etc) incurred in getting Kensington to correct their breaches of the DPA.

 

 

I do believe I was turned down for a T-Mobile contract SIM. Before the late payment marker went on I got a contract phone, I applied for another one and it was declined. Which was about the time this went on.

[thesergeant]

Is another route to now claim for Breach of Data Protection Act, due to their failure to remove all inaccurate information, with costs ?

[car2403]

You need to start your own thread on this now, as it is going off topic and we don't want to hijack this thread with stuff irrelevant to its title

[too strong]

I am watching this thread closely as I currently in a battle with barclaycard r.e. default and will soon be preceding against Cabot and their default on same account.

 

The case against Barclaycard is next wednesday so I have probably missed the opportunity to claim for inaccurate data, but I will be looking to have a proper go at Cabot.

[postggj]

quick question, sorry to butt in

if company has no cca, and have defaulted with cra

can the company say they cannot enforce the debt, but the default is valid as it states the performance of the account, and is not an enforcement action so will not be removed

once again sort of relevent ,sorry

[car2403]

A Default is a method of enforcement - see Part VII (Default and Termination) of the CCA 1974.

 

Without a properly executed credit agreement, you can't be in Default as their is no "agreement" as to what interest you'll be charged or how much you'll pay when. How can they say you Defaulted on your agreement to pay if that agreement is unenforceable? Simple answer - they can't. (Or, rather, they can but it is illegal and you can and should challenge it)

[postggj]

thats great just what i wanted to hear

halifax hear i come

[ammani]

Hi there, i have been reading this thread with interest, can i claim against Cap One, they sent me a letter saying my payment was late and they would default me if it wasnt paid, but on the letter it said my account was nil, so called them and they said it was a mistake, to ignore it as account was settled. 2 weeks later they defaulted me, and now claim balance was not settled? Have court case in 2 weeks.They removed default but have added other bad information that is fictitious. I als served them with notice persuant to sct 10 & 12, but they have ignored it. Could i too have a copy of the case that judge says about £1000 for default. Many thanks.

[tifo]

Hi there, i have been reading this thread with interest, can i claim against Cap One, they sent me a letter saying my payment was late and they would default me if it wasnt paid, but on the letter it said my account was nil, so called them and they said it was a mistake, to ignore it as account was settled. 2 weeks later they defaulted me, and now claim balance was not settled? Have court case in 2 weeks.They removed default but have added other bad information that is fictitious. I als served them with notice persuant to sct 10 & 12, but they have ignored it. Could i too have a copy of the case that judge says about £1000 for default. Many thanks.

 

You are unlikely to get as the case states, especially for 2 weeks. It is also very hard to find the original judgement, but the appeal judgement which upheld the decision is available.

 

Best thing is to pass it to the Financial Ombudsman who should award £300 for a wrongful default. I have had a few of these and mine were over 3 years.

 

Depends if you want to do the work to possibly get more or get a quiet easy £300 out of it.

[patrickq1]

wrong thread apoligies

patrickq1