HSBC managed account - Trying to remove a invalid? default

[chris1977]

Thanks for the advice Chris. I guess I better start with my witness statement then as We've got until 12th September to exchange these (I can't wait to see what they come up with!).

 

I saw in your Barclays thread that you prepared and submitted a Skeleton Argument as well. Can I ask what the purpose of this is and how this differs from a Witness Statement? Alternatively, if you could point me in the direction of the relevant CPR I could look it up for myself and stop asking so many questions....

 

Cheers

 

Chris

[car2403]

Witness statement / skeleton argument = potato / patato, etc, etc.

 

I did one witness statement / skeleton combined, as it makes more sense to me, as a LIP.

 

Generally, a witness statement is a statement of a witness, ( ) but I was the witness, so it didn't seem right doing separate documents.

 

A skeleton argument outlines the legal arguments that are involved in the case - a witness statement is a statement of facts, which bring out those arguments.

[chris1977]

Witness statement / skeleton argument = potato / patato, etc, etc.

 

I did one witness statement / skeleton combined, as it makes more sense to me, as a LIP.

 

Generally, a witness statement is a statement of a witness, ( ) but I was the witness, so it didn't seem right doing separate documents.

 

A skeleton argument outlines the legal arguments that are involved in the case - a witness statement is a statement of facts, which bring out those arguments.

 

Thanks mate, crystal

 

I'll get cracking on with my Skeleton Witness Argument Statement over the next few days then and post on here for feedback.

 

Cheers

 

Chris

[car2403]

I'll get cracking on with my Skeleton Witness Argument Statement over the next few days then and post on here for feedback.

 

Er, yeah... just don't call it that, or the Court will get it's knickers in a twist because they won't know what it is

 

Lets stick to Claimant's Skeleton Argument, then?

[chris1977]

Er, yeah... just don't call it that, or the Court will get it's knickers in a twist because they won't know what it is

 

Lets stick to Claimant's Skeleton Argument, then?

 

I suppose your version does sound a little better........ ;-)

[chris1977]

I'm just preparing my Witness Statement and Skeleton Argument, which I should be able to post up tonight for comments, but I just have a quick question.... should I include a schedule of costs at this point, or is it too early for this? As always, any advice would be appreciated.

 

Cheers

 

Chris

[car2403]

Costs for who? You wouldn't send it to the Court, but you could include a copy within the service of your statement on HSBC, just to rub it in. The Court will only be interested in costs if you go on to win and can show that HSBC have been naughty enough to have costs awarded against them.

 

So, to answer your question, yes include it, but only in HSBC's bundle, as an attachment, at this stage.

[chris1977]

Thanks Chris. I'll do as you suggested, just to rub it in as you said

 

I've pretty much finished my statement (thanks to your excellent Barclays thread!) so I'll post it up tonight for comment. I've decided not to go into too much detail to back up my arguments at this stage, e.g. I haven't said why I believe the documents they have provided don't meet the requirements of the OFT Determination, just that I believe they don't etc. Does this sound like a sensible approach?

 

Cheers

 

Chris

[car2403]

Does this sound like a sensible approach?

 

PM sent

[chris1977]

Today was the deadline for the exchange of witness statements and, lo and behold, nothing from the Bank. I called the court to see if they'd received anything and they haven't, and was told that this means that the judge "may consider" discounting anything they produce at the hearing which they previously failed to produce.

 

I'm furious! Surely if the court orders something and either party fails to comply with that order there must be some redress for the other party :-|

[car2403]

In reality, there isn't. If they turn up with new evidence, the Judge will likely allow them to submit it, as it would be unjust not to. (Not my opinion, but that is what is likely to happen!)

 

There is some redress - you could apply to the Court to have their statement of case struck out. As this is (I think) the first Court Order they haven't complied with, the strike out is unlikely to be awarded. You could ask for an order requesting a strike out, or issue of an unless order if the case isn't struck out - this way, if they fail to comply with the next Court Order, the case should be struck out automatically. Of course, they are more likely to comply with an unless order!

 

Given what I've said at the first paragraph of this post, my advice would be to ride this out. The Judge may or may not decide to allow them to rely on things they haven't disclosed as ordered. If you apply for the strike out, you're unlikely to get one. If you apply for strike out or unless order, you won't get the strike out and the issue of an unless order will just delay the whole thing further. IMHO, you're best off continuing as is. If worst comes to worst and they turn up with some statement you don't know how to reply/respond to, you can always ask the Judge to adjourn and issue new directions. As it would be unjust to not allow them to rely on non-disclosed informaton, it must automatically be unjust to expect you as a LIP to reply to a statement of case that you haven't had time to consider, IMHO.

 

Of course, all this depends on the "Judge Lottery", and in which party the Judges bias lies. That isn't a blasé statement, as the Judge will undoubtedly be bias - it just depends which side is favoured that alters the outcome.

 

Really, what you do next is your call - it's your claim and I can only advise the best way to go based on my experience in the past.

[chris1977]

Thanks Chris for the full response and your advice is, as always, very much appreciated!

 

To be honest, I hear what you're saying about riding it out and deep down I know that anything I send to the court at this point will just fall on deaf ears.

 

I'm freakin' furious!!

[chris1977]

Looks like I spoke too soon; bank's Witness Statement received today.

 

I'm disappointed as it's a bit pathetic really. Is it acceptable to reproduce a witness statement on here? If so, I'll post it up in a bit

 

Cheers

 

Chris

[car2403]

Depends what it says, I suppose? You could email it to me before you post, if you want...

[chris1977]

Cheers Chris. It should be in your inbox now

[chris1977]

Right, here's my witness statement.....

 

Claim Number: ********

 

In the ******** County Court

 

 

 

Between:

Chris1977

(Claimant)

 

and

 

 

 

HSBC Bank PLC

(Defendant)

 

 

 

_______________________

STATEMENT OF EVIDENCE &

SKELETON ARGUMENTS

SUBMITTED BY THE CLAIMANT

_______________________

 

REASON FOR SUBMISSION OF THIS STATEMENT AND ITS INTENDED USE;

 

I, Chris1977, the Claimant in this case, make this statement of evidence and outline my skeleton arguments from my own knowledge or experience, excepting for where reference is made to specific documentation contained within the exhibits attached where this statement is made in support of said documentation.

This statement is submitted by the Claimant (a litigant in person) and outlines its case in claim against the Defendant.

It is intended this statement will expedite the upcoming hearing and elucidate and clarify the issues that appear to the Claimant to be hampering the speedy and equitable resolution of this claim.

BACKGROUND TO THE CASE;

1. The Claimant admits that he held an Overdraft on a Current Account with the Defendant since 2006, with a sort code of ****** and account number of ********.

2. The Claimant will outline the reasons he believes that the Defendant has unlawfully Defaulted and Terminated the account, as a result of the application of charges applied by the Defendant and the Defendant’s failure to comply with the prescribed Default/Termination procedure contained within the Consumer Credit Act 1974 (herein referred to as “CCA 1974”) as amended.

3. The Claimant will further argue that the Defendant is in breach of the data protection principles laid down by the Data Protection Act 1998, (herein referred to as “DPA 1998”) as amended, and, in doing so, the Defendant has breached its obligations under that Act, in that it is processing and sharing incorrect and inaccurate data relating to the Claimant, thereby causing him damage.

PRE-LITIGATION CORRESPONDENCE;

4. During January 2008, after performing an audit of his Credit Reference Files, held by major Credit Reference Agencies, the Claimant discovered that the Defendant had recorded a Default entry against the Claimant in relation to the alleged Overdraft agreement on 15th August 2007, with the original Default amount being recorded as £1569.41. Reference is made to highlighted parts of an extract of the Claimants Credit Reference File, attached, “Exhibit 1”)

5. The Claimant wrote to the Defendant on 15 January 2008, (“Exhibit 2”, as attached) making a request as per the obligations outlined under s.78 CCA 1974. This request was sent by Royal Mail First Class Post with Recorded Delivery, which gave the Defendant 28 working days from receipt of the request, to provide said documentation, being 16 days more than that stipulated in Regulation 2 of the Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983. The deadline to comply with the request was, therefore, 14th February 2008.

6. The Defendant responded to the Claimant’s request on 31st January 2008 (“Exhibit 3”), in the form of a letter from the Head of Marketing, enclosing two customer information leaflets, entitled “Making Sense of Overdrafts” and “Listening to your Comments”.

7. The Defendant further responded to the Claimant’s request on 7th February 2008 (“Exhibit 4”), in the form of a letter from the Customer Service Manager, enclosing three customer information leaflets, entitled “Personal Banking Terms and Conditions”, “Making Sense of Overdrafts” and “Price List and Interest Rates” and stating that “the default notice letter will follow in the post shortly”

8. In a further response dated 7th February 2008, this time from Metropolitan Collection Services, acting on behalf of the Defendant, (“Exhibit 5”) the Claimant was informed that “[The Defendant is] unable to provide a copy agreement and default notice, as the […] outstanding balance relates to a managed bank account, and it is not regulated under the Consumer Credit Act 1974”

9. The matters outlined in paragraph 8, appearing as statements from a Creditor, are binding on the Defendant under s.172 CCA 1974.

10. The Claimant replied to the Defendant, in a letter dated 18th February 2008 (“Exhibit 6”), outlining his reasoning for believing that the Overdraft agreement was regulated by the CCA 1974, in that the agreement is “running account credit” within the terms of s.10 CCA 1974. The Claimant highlighted the Defendant’s failure to comply with the Claimant’s s.78 CCA 1974 request dated 15th January 2008 and outlined his reasoning for believing the alleged agreement is unenforceable under the CCA 1974. The Claimant further requested that the Default information recorded against him by the Defendant be removed as such Default, without a properly executed regulated agreement, would be unwarranted and unlawful, as only a correctly executed regulated agreement can be Defaulted and Terminated under s.87 and s.98 CCA 1974. The Claimant further relied on provisions of the Data Protection Act 1998 within that letter to support his argument – these arguments are outlined in paragraphs 40-48, below – and served on the Defendant a Statutory Notice pursuant to Sections 10 and 12 of the DPA 1998.

11. The Defendant, having failed to fully comply with the Claimant’s s.78 CCA 1974 request (in that; no statement or statements of account having been supplied at that time and in that the full requirements of s.78(1)(a), s.78(1)(b) and s.78(1)© having not been met at that time also), is in default of that request. The Defendant, therefore, is unable to enforce the alleged agreement against the Claimant (s.78(6)(a) CCA 1974) and has since committed a criminal offence due to its continued default in providing said information. (s.78(6)(b) CCA 1974)

12. The Defendant produced, in a letter dated 19th February 2008 (“Exhibit 7”), a copy of an alleged Final Demand letter, also signed and dated 19th February 2008, some seven months after the alleged default occurred. Said letter contained personal data relating to the Claimant, such as the Claimant’s current address; information which would not have been known to the Defendant at the time the Final Demand letter was allegedly first presented.

13. The Defendant responded to the Claimant’s letter dated 18th February 2008, in a letter from the Customer Services Officer dated 26th February 2008 (“Exhibit 8”) outlining the Defendants reasoning for terminating the Agreement and subsequently recording Default information on the Claimant’s credit file. The Defendant stated in this letter that it was “satisfied that the entries recorded with the Credit Reference Agencies provides a fair and accurate representation of the manner in which [the Claimant’s] accounts had been operated.” The Defendant failed to substantiate its actions as was requested in the Claimant’s previous correspondence. The Defendant also failed to make any reference to the DPA 1998 Statutory Notice served on 18th February 2008.

14. The Claimant responded to the Defendant in a letter dated 11th March 2008 (“Exhibit 9”), again outlining the reasoning for his belief that the recording of Default information against his credit file was unlawful and requesting the Defendant remove said information. The Claimant further highlighted the reasons why he believed that, to date, the Defendant was in default of his previous request under S.78 CCA 1974 and reminded the Defendant that it had yet to comply with the Statutory Notice served on 18th February 2008.

15. The Defendant responded in a letter from the Service Improvement Officer dated 27th March 2008 (“Exhibit 10”), confirming its position, yet failing again to substantiate its actions. The Defendant further failed to acknowledge that it was in default of the Claimant’s request made under S.78 CCA 1974 and also failed to acknowledge the Statutory Notice served on 18th February 2008, of which it was then in default, as of 12th March 2008.

16. The Claimant again responded in a letter dated 31st March 2008 (“Exhibit 11”), comprehensively reiterating the content of his previous correspondence, the reason for his complaint and the reason he believed that the Defendant had thus far failed to meet its obligations under CCA 1974 and DPA 1998. In said letter, the Claimant advised the Defendant that he would commence legal proceedings should the Defendant fail to respond within seven days.

PART 1:

CONSUMER CREDIT ACT 1974

FAILURE TO PROVIDE A COPY OF THE EXECUTED CREDIT AGREEMENT

17. The Defendant, in its responses to the Claimants requests for information, (outlined in paragraphs 5, 10, 14 and 16 above) has failed to provide a copy of the Claimants agreement surrounding the provision of the alleged Current Account Overdraft, as required by the S.78 CCA 1974.

18. To help clarify these matters, this is an extract from a Court case (Coutts & Co v Gabriel Oscar Alan Sebestyen [2005] EWCA Civ 473.) and is part of the summing up by the Judge in relation to the effect on overdrafts and the function of the CCA in such circumstances;

 

“The Defendant provided an overdraft on the account;

 

 

The agreement was a regulated debtor-creditor agreement within the meaning of s.8 and s.13© of the Consumer Credit Act 1974, providing for 'running-account credit' within the meaning of s.10(1)(a) of the Act (in effect, a revolving credit within an agreed credit limit); and

That, as such, it was subject to the requirements of Part V of the Act (including the requirements as to documentation set out in sections 57 to 63 of the Act) save and in so far as it was excluded or exempted from such requirements.

 

Section 65 in Part V of the Act provides that an "improperly executed" regulated agreement is unenforceable by the creditor without a court order. It is common ground that a regulated agreement is "improperly executed" for this purpose if the requirements of sections 57 to 63 have not been complied with.

 

Section 74 of the Act provides for the exclusion of certain agreements from Part V. It provides as follows (so far as material):

"74. – (1) This part …. does not apply to –

(b) a debtor-creditor agreement enabling the debtor to overdraw on a current account, …

(3) Subsection 1(b) … applies only where the OFT so determines, and such a determination –

(a) may be made subject to such conditions as the OFT thinks fit …

(3A) …. in relation to a debtor-creditor agreement under which the creditor is …. a bank …. the OFT shall make a determination that subsection 1(b) above applies unless it considers that it would be against the public interest to do so.

 

THE DETERMINATION:

 

The Determination (which is signed by the Director of Fair Trading) is made under section 74(3) of the Act. I set it out in full:

 

"1. Under the powers conferred upon me by s.74(3) and (3A) and s.133 of the Consumer Credit Act 1974, I, the Director General, being satisfied that it would not be against the public interest to do so, hereby revoke with effect from 1st February 1990 the Determination made by me in respect of Section 74(1)(b) and dated 3 November 1983 and now determine that with effect from 1st February 1990 Section 74(1)(b) shall apply to every debtor-creditor agreement enabling the debtor to overdraw on a current account, under which the creditor is a bank.

 

2. This Determination is made subject to the following conditions:-

(a) that the creditor shall have informed my Office in writing of his general intention to enter into agreements to which the Determination will apply;

(b) that where there is an agreement between a creditor and a debtor for the granting of credit in the form of an advance on a current account, the debtor shall be informed at the time or before the agreement is concluded:

- of the credit limit, if any,

- of the annual rate of interest and the charges applicable from the time the agreement is concluded and the conditions under which these may be amended,

- of the procedure for terminating the agreement;

and this information shall be confirmed in writing.

© that where a debtor overdraws his current account with the tacit agreement of the creditor and that account remains overdrawn for more than 3 months, the creditor must inform the debtor in writing not later than 7 days after the end of that 3 month period of the annual rate of interest and charges applicable.

 

3. In this Determination the terms 'creditor' and 'debtor' shall have the meanings assigned to them respectively by Section 189 of [the Act]. The term 'bank' includes the Bank of England and banks within the meaning of the Bankers' Books Evidence Act 1879 as amended."

19. In its Defence particulars, the Defendant states that, whilst it “accepts that the overdraft is a Regulated Consumer Credit Act agreement, it is exempt from the documentary requirements of the Consumer Credit Act by Section 74(1)(b) and the Determination given by the Office of Fair Trading regarding overdrafts on current accounts. As such there is no executed agreement for an overdraft and accordingly Section 78 of the Consumer Credit Act does not bite.”

20. The Claimant agrees that the OFT Determination applies in the current proceedings, but the Defendant has failed to satisfy the conditions laid down to benefit from such Determination, the effect of which is that the Defendant must be able to show that the agreement complies with the form and content requirements of Part V of the CCA 1974, specifically s.60 and s.61 of the Act.

21. On 12th August 2008, the Defendant, as ordered by the Court, produced copies of documents (“Exhibit 12”) which it believes demonstrate that it complied with the requirements of the Determination, allowing it exemption from the documentary requirements of CCA 1974, under S.74(1)(b). The Claimant avers that said documentation does not satisfy the requirements of the Determination.

22. The Claimant avers, therefore, that the Defendant is in default of the Claimant’s request to provide those details required by the OFT Determination. Accordingly, the Defendant is “in default” under s.78(6) CCA 1974 and the Claimant respectfully submits that this prevents the Court enforcing this debt until the default is rectified as per s.78(6)(a) CCA 1974. The Defendant has also committed an offence under s.78(6)(b) CCA 1974.

23. The Claimant, therefore, puts the Defendant to strict proof of the existence of an agreement that is in all ways compliant with the form and content requirements of Part V of the CCA 1974, as amended.

FAILURE TO CORRECTLY DEFAULT AND TERMINATE A REGULATED AGREEMENT

24. The Claimant argues that the Defendant’s belief that it is exempt from the documentary requirements of CCA 1974 by virtue of S.74(1)(b) and the Determination, is misconceived. Whilst the Claimant accepts that s.74(1)(b), along with the Determination (where the requirements of said Determination have been met) allows exemption of certain agreements from Part V of the Act, the Claimant does not accept that this exemption applies for all documentary requirements of the Act. The Claimant, therefore, puts the Defendant to strict proof that it is exempt from the documentary requirements of the remainder of the Act, in particular Part VII, which deals with Default and Termination of regulated agreements.

25. On 12th August 2008, the Defendant, as ordered by the Court, produced a copy of a Final Demand letter (“Exhibit 13”), which it claims was sent on 29th June 2007.

26. The Claimant is prepared to swear on oath at trial that such Final Demand letter was not received at the time the agreement was terminated by the Defendant and, accordingly, puts the Defendant to strict proof of the issue of said Notice and receipt by the Claimant.

27. In the alternative, which is denied, where it is held that the Defendant did issue the Final Demand letter on 29th June 2007, the Claimant avers that said letter does not comply with the form and content requirements of Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983, as amended.

28. The Claimant therefore argues that the agreement has not been Defaulted and Terminated in accordance with part VII CCA 1974 and, as such, the Defendant is not entitled to rely on that default or termination in Defaulting the Claimant.

FAILURE OF DEFAULT OR TERMINATION NOTICE TO BE ACCURATE

29. In addition to this, between September 2001 and April 2007 the Defendant debited numerous charges from the Claimant’s Current Account, relating to unauthorised overdraft charges and fees, or charges and fees for unpaid items. The sums removed from the Claimant’s account totalled £305.50.

30. The Claimant requested a refund of these charges on 27th April 2007. The Defendant agreed to honour this request in a letter dated 26th June 2007, some 3 days prior to the date that the alleged letter demanding repayment of £1569.41 was issued to the Claimant. A refund of charges totalling £305.50 was credited to the Claimants account on 20th July 2007, some 21 days after the alleged Final Demand letter was issued.

31. The Claimant avers that, in issuing this refund the Defendant admits that said Charges were unlawfully applied to the Claimant’s account. The Claimant further avers that, due to the refund expected by the Claimant at the time that the alleged Final Demand letter was issued, said Final Demand letter was inaccurate by £305.50.

32. Failure of a Default or Termination Notice to be accurate not only invalidates such 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, (Wilson v First County Trust Ltd [2003] UKHL 40, Wilson v Robertsons (London) Ltd [2006] EWCA Civ 1088, Wilson v Pawnbrokers [2005] EWCA Civ 147) but would also give the Claimant a claim for damages in the sum of £1,000. (Kpohraror v Woolwich Building Society [1996] 4 All ER 119)

33. The Claimant further makes reference to a case heard in the House of Lords which outlines the Courts powers in such circumstances, Wilson v First County Trust Ltd [2003] UKHL 40, which is binding authority in this case. In particular, the Claimant makes specific reference to Paragraphs 49, 121, 123 and 173 of that Judgment.

FAILURE TO RESPOND TO THE CLAIMANT’S REPAYMENT PROPOSALS

34. On 18th July 2007, some nineteen days after the issue of the alleged Final Demand letter on 29th June 2007, on discovery that he was unable to access his account, the Claimant notified the Defendant during a personal visit to the Bracknell Branch Manager, Mr ********, that he was not in receipt of any correspondence indicating that there was a problem with the account. It was during this visit that the Defendant, via the Branch Manager, brought to the attention of the Claimant that immediate repayment of the overdrawn balance on the account had been demanded and a satisfactory proposal was required of the Claimant within 28 days in order to avoid the recording of a Default with the Credit Reference Agencies.

35. The Claimant followed up this visit with a number of emails to said Branch Manager in an attempt to rectify the situation, which was brought to his attention during the visit to the Bracknell Branch. The content of those emails is attached (“Exhibit 14”).

36. The alleged Final Demand letter, said to be issued on 29th June 2007, contains the following paragraph:

“As a DEFAULTING DEBTOR, Details of your default including your name and address may be given to the CREDIT REFERENCE AGENCIES named at the bottom of this letter if we have not received a satisfactory response from you within 28 days”

37. It is the Claimant’s belief that the Banking Code (“Exhibit 15”) is relevant in this Claim, in particular Sections 2 and 13, extracts of which are reproduced below:

“2 Fairness Commitment

We promise we will treat you fairly and reasonably when providing you with products and services covered in this Code. We will keep this promise by meeting all of the key commitments below:

…

We will deal quickly and sympathetically with things that go wrong and consider all cases of financial difficulty sympathetically and positively.”

38. Where it is held that the Defendant did issue the Final Demand letter on 29th June 2007, which is denied, the Claimant avers that he did attempt to bring the account in order during the 28 day period granted by the alleged Final Demand letter and that the Defendant failed to acknowledge those efforts and to provide the Claimant with feedback, or details of what further action would be required to avoid the recording of the alleged default.

39. The Claimant further contends that, in failing to acknowledge the Claimant’s proposal or consider the Claimant’s personal circumstances the Defendant’s behavior was contrary to the good practice standards laid down in the Banking Code, a code to which the Defendant subscribes.

PART 2:

DATA PROTECTION ACT 1998

DATA PROTECTION ISSUES;

40. The Claimant believes that the Defendant has unlawfully processed his data for the reasons outlined, in so far as it is processing, sharing and updating inaccurate and incorrect data held by third party Credit Reference Agencies, and also for the reasons given in this section.

41. The Defendant, by continuing to report the accounts as being in Default, for the reasons stated in this document, is failing in its duty to process data accurately, as required under the DPA 1998.

42. Having entered no lawful contract with the Claimant, (the alleged agreements having always been invalid from inception) the Defendant is now, and has always been, processing the Claimants personal data unlawfully, without having a legitimate interest in such processing, which is in contravention of the DPA 1998.

43. The Claimant considers that the amount of the agreement is unenforceable under consumer law and that, knowing this to be the case (that is that there was no basis in law to attempt to recover any money under the agreement), it is against both the spirit and letter of the law that a creditor should be able to continue to process data, and distribute that data, including allegations of bad faith, (that is, a Default, arrears, or other adverse information) regarding a credit agreement rendered unenforceable by law. (Wilson v First County Trust Ltd [2003] UKHL 40)

44. It is further averred that by updating the information with the Credit Reference Agencies, the Defendant is continuing to process this data knowing that it is incorrect and inaccurate.

45. The information at the Credit Reference Agencies expressly states that the Defendant is the Creditor, and is the data controller for the purposes of the DPA 1998.

46. It is respectfully submitted that a debt rendered unenforceable by the express will of Parliament should not be enforced by any means whatsoever, and that the protections under the CCA 1974 should protect the Claimant against unfounded allegations of Default or arrears made by the Defendant. The attention of the court is drawn to Wilson v Robertsons (London) Ltd [2005] EWHC 1425 (Ch) thus:

 

“What the 1974 Act does is put in place a bright line over which the parties, and in particular the lender, must not step…”

47. The Claimant contends that the Wilson v First County Trust Ltd [2003] UKHL 40 ruling is intended to have the effect that Creditors, such as the Defendant in the present case, who does 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 Record (and therefore, reputation) 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, including both the principle debt outstanding and any interest due on it. The law lords further considered the issue of unjust enrichment but decided that it was appropriate for the creditor to be financially penalised in this way.

48. It is the contention of the Claimant that at all relevant times the credit agreement has been improperly executed, and that there is not, nor has ever been, any lawful obligation to repay monies to the Defendant, and that as a consequence any allegations that such an obligation exists are unfounded, inaccurate and unlawful under DPA 1998 as a result.

s.10 & s.12 STATUTORY NOTICES;

49. The Claimant wrote to the Defendant, in a letter dated 18th February 2008 previously outlined at paragraph 10 above, informing the Defendant of these issues. The Claimant also included a Statutory Notice pursuant to s.10 and s.12 DPA 1998. (“Exhibit 6”)

50. The Defendant has failed to unconditionally comply with such Notices.

51. In the alternative to that already stated above, which is denied, where it is held that the Defendant is processing the Claimants data correctly and accurately within the terms of the DPA 1998, the Claimant will further plead as follows;

a. At no time did the Claimant grant permission, either expressly or implied, for the Defendant to arbitrarily extend that permission to store, process or disclose any personal data beyond the cessation date of the contract; and

 

b. It is the Claimants contention that the Defendants perceived right to arbitrarily choose to extend the length of that contract without the Claimants knowledge or agreement would be unlawful and unenforceable under the provisions of the Unfair Terms in Consumer Contracts Regulations (1999) the Unfair Contracts (Terms) Act 1977 and;

 

c. The Defendant has failed to provide the Claimant with any evidence to prove agreement to such terms in perpetuity, and it is therefore the Claimants contention that the Defendant is in breach of both the contract itself (if any exists) and the DPA 1998 by its continued disclosure of personal data to third parties after the termination of such agreement or consent – namely, the 3 major Credit Reference Agencies, amongst others; and

 

d. The Claimant, therefore, puts the Defendant to strict proof of the contractual agreement between both parties in relation to the agreement, inter alia, allowing the Defendant to store, process or disclose any personal data of the Claimant beyond the contractual termination period and to which terms and conditions were included as part of that agreement, both originally and as modified during the life of the agreement, if applicable; and

 

e. No admissions are made by the Claimant as to the incorporation of any term into the contract between the Claimant and the Defendant purporting to entitle the Defendant to store, process or disclose any such personal data.

PART 3:

THE CLAIMANTS REQUEST FOR A COURT ORDER

52. In view of the arguments in this document, the Claimant respectfully seeks that the Court;

a. Determines the rights of the parties to the alleged Consumer Credit Agreements and seeks a declaration from the Court under s.142 CCA 1974 that the debts are unenforceable and that any application for an Enforcement Order under s.65 CCA 1974 will not be entertained, either now, or at any future time; and

 

b. Awards damages to the Claimant in the sum of £1,000, due to the Defendants failure to Default and Terminate the Claimants overdraft account in the lawfully prescribed manner; and

 

c. Orders the enforcement of the Defendants compliance with the Claimants Statutory Notices under s.10 and s.12 DPA 1998; and

 

d. Issues an Order, pursuant to the Courts powers contained within s.14(1) and s.14(3) DPA 1998, that the Defendant immediately blocks, erases or destroys those data and any other personal data in respect of which he is the data controller and which contains an expression of opinion which appears to the Court to be based on the inaccurate data and order the data controller to notify third parties to whom the data have been disclosed of the blocking, erasure or destruction.

I, Chris1977, the Claimant in this case, believe that the facts stated in this document are true.

 

Signed:

 

 

 

 

 

 

Chris1977

(Claimant)

[chris1977]

And here's the Bank's:

 

1. I am a Legal Executive with conduct of this matter and I am duly authorised by the Defendant (“the Bank”) to make this statement on its behalf. Save as stated otherwise the facts contained herein are from my own knowledge and from my perusal of the bank’s papers.

 

2. Attached to this statement and marked “CEO1” are copies of documents to which I refer in the course of this statement. References to page numbers in this statement are also references to page numbers of the bundle attached to this statement.

 

3. I have read the Defence filed and confirm the truth of the matters therein.

 

Background

 

4. The Claimant has held a current account facility with the bank since 2nd August 1996. The current account is not an agreement regulated by the Consumer Credit Act 1974 and operates in accordance with the terms and conditions published by the bank. Up to date terms and conditions are at pages 1 to 47 of Exhibit “CEO1”.

 

5. In March 2007 the Claimant approached the Bank to operate an overdraft facility from the current account. On 29th March 2007 the Bank issued a personal facility letter to the Claimant. A copy of the bank’s standard personal facility letter is at page 48 to 49 of Exhibit “CEO1”.

 

6. The Bank has been unable to produce an actual copy of the personal facility letter issued to the Claimant because the bank does not store an actual copy within its computer records. However, I note that the Bank has produced computer stored folder view documents and folder notes showing that a letter “FLMBA” was issued to the Claimant on 29th March 2007 for an overdraft limit of £1,500.00 with a limit expiry date of 28th March 2008. Copies of the folder view documents and folder notes are at pages 50 to 51 of Exhibit “CEO1”.

 

7. The Claimant has failed to repay the overdraft facility to the bank and in accordance with the terms and conditions of the current account, the bank has issued a letter of formal demand to the Claimant seeking repayment of the sum of £1,569.41 on 29th June 2007. The Bank is again unable to produce the actual letter of formal demand sent because it has not been stored on the Bank’s computer system. Again there is produced and shown to me at Pages 52 to 58 of Exhibit “CEO2” copies of the folder view documents and folder notes from the computer together with a copy of the standard letter code ACF02S issued by the Bank. This demand would have been sent to the address held on the Bank’s computer record for the Claimant at the date of sending.

 

8. The Claimant has failed to respond to the letter of formal demand or to make payment to the Bank and the Bank therefore passed collection of the debt to its Debt Recovery Services Department. I understand that the Bank’s Debt Recovery Services Department subsequently entered into an arrangement with the Claimant for repayment of his indebtedness owed at the rate of £50.00 per month. The Claimant has failed to honour this arrangement and has paid to date the total sum of £351.00. The last payment made was on 3rd April 2008. At Page 59 of Exhibit “CEO2” is an extract from the Bank’s Debt Recovery Services computer system showing the payments received. The Claimant remains indebted to the Bank in the total sum of £1218.41.

 

9. It is denied that the Bank has failed to comply or is in any breach of any term of the Consumer Credit Act 1974. The overdraft facility is exempt from the documentary requirements of the Consumer Credit Act by Section 74(1)(b) and the Bank has complied with the Determination given by the OFT regarding overdrafts on current accounts by issuing a letter of formal demand to the Claimant pursuant to the terms and conditions of the current accounts.

 

10. It is further denied that the Claimant is entitled pursuant to Section 14(1) of the Data Protection Act 1998 for the removal of the default records because the Claimant remains indebted to the Bank in the sum of £1218.41 and at the time of registration was justly and truly indebted to the Bank in the sum of £1569.41. I refer to the Defence filed and the attachment to the Defence and evidence of the level of debt that has already been filed/served, namely the Bank statement at the time of registration.

 

11. I am unable to comment upon the balance of the Claimant’s claim against the Bank in relation to bank charges other than to say that the Claimant’s account was governed by the Bank’s personal business banking terms and conditions and pursuant to those terms the bank is entitled to make a charge of its services and that all charges applied to the claimant’s account were reasonable and properly disclosed in the Bank’s terms and conditions and published price list. These issues are presently the subject of a test case on which Judgement has not yet been handed down and should either be withdrawn from these proceedings or stayed pending the outcome of those proceedings. In any event the Claimant has not yet filed any evidence in support of his contentions on this element of the claim, or at all.

 

12. I believe that the facts stated in this Witness Statement are true.

 

[tinkerbell20]

subscribing

[steven4064]

... The overdraft facility is exempt from the documentary requirements of the Consumer Credit Act by Section 74(1)(b)...

They are correct that, under s74(1)(b) of the CCA1974 the requirements of Part IV of the Act (that is sections 55-74 except s56 of the Act) do not apply to overdrafts.

 

Bu implication, the bits of sections 77 and 78 relating to agreements do not aply either although the rest does. And the rest of the CCA 1974 does apply, in particular ss 87-88 on default notices, ss157-160 on CRAs, s174 on disclsure of information.

 

See Act here.

[chris1977]

Hi Steven. That's certainly the approach I'll be taking if/when this ends up in front of a judge next week. The important thing here though is that, in order for them to also be exempt from the requirements of Part V of the Act, they need to be able to show that they have met the OFT's requirements as stated in his determination. What they have disclosed to date does not satisfy those requirements, therefore they are not able to claim the benefit of Section 74(1)(b), meaning the entire Act applies

[steven4064]

You may find this post useful as well as car's thread if you've not seen it

[car2403]

You may find this post useful as well as car's thread if you've not seen it

 

Oh, I'm aware that Chris is very aware of my thread...

[chris1977]

Hi Steven, thanks for the links. I'll have a look through the Abbey one shortly. As for Car's thread, I'm pretty familiar with it already. In fact, it was that thread that inspired me to take action against the bank in the first place.

[car2403]

Hi Steven, thanks for the links. I'll have a look through the Abbey one shortly. As for Car's thread, I'm pretty familiar with it already. In fact, it was that thread that inspired me to take action against the bank in the first place.

 

Lawson's is very similar, albeit it's been gone about in the wrong way slightly, but it isn't too late to rectify that.

 

I'll point him in the direction of this thread, also, as I'm sure both threads will highlight what needs to be done.

[steven4064]

You guys all seem to know what you are doing, so I will but out.