How to file in court for removal of default

[dbairduk]

Hello,

Natwest have offerd to refund me for more than my defualt, but still refuse to remove the default.

 

Does anyone have a link to a guide to filing with moneyclaim and removing a default?

All the other guides seem to miss the default part out....

 

Regards

 

D

[Enron]

Think that each default removal will be different, so there are no set instructions up.

 

Would recommend having a read of car2403 threads as they can point you in the right direction of what to do:

 

http://www.consumeractiongroup.co.uk/forum/search.php?searchid=1510157

[dbairduk]

Should i serve an s.10 for the default? Or just go staright to court?

I am on holiday for 10 days from friday so would like to get the ball rolling.

the has an s.10 worked for many on here?

[Enron]

I think an s.10 is part of it, however in your case the s.10 would only legally justify the further process of data on yourself and the account - which wouldn't have any impact on the pre-existing default.

 

You'll have to outline a Particulars Of Claim to remove the default, however its removal would be justifiable under the Data Protection Act 1998 if there was any incorrect information recorded as part of the balance - ie. if it included any penalty charges etc that the bank were unwilling to substantiate.

 

As to the specifics of how to do it I would defer to someone more knowledgable as I havent got there yet. Maybe contact rory32 or car2403 who can point you in the right direction.

[dbairduk]

1. The Claimant has an account XXXX XXXX XXXX XXXX("the Account") with the Defendant which was opened on 12/10/2001.

 

2. During the period in which the Account has been operating the Defendant debited numerous 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 contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant.

 

3. A list of the charges applied is attached to these particulars of claim.

 

4. The Claimant contends that:

a) The charges debited to the Account are punitive in nature; 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 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.

b) The contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of the Unfair Contract Terms in Consumer Contracts Regulations (1999), the Unfair Contract Terms Act 1977 and the common law.

 

 

5. Additionally, the Defendant has entered a default notice against the Claimant’s credit reference files. The Claimant contends that:

 

a) The defendant, as a data controller, is processing inaccurate data and the claimant requests the court makes an order for rectification under s.14 of the Data Protection Act 1998. The defendant has disclosed the claimant's personal data to third parties through their data processors of Equifax, Experian ...etc. The processing of data includes disclosing, disseminating and otherwise making available under s.1 of the Data Protection Act. The claimant's obtained from Experian, Equifax etc states that a default marker was placed by the defendant showing that the amount outstanding was £497. Experian, Equifax etc are processing this data on behalf of the defendant by disclosing the data to third parties.

 

The claimant submits that this data is incorrect as owing to unlawful charges, the amount outstanding was £3 without interest being added. A default marker is placed on a credit record where it can be established that the debtor was in serious breach of the credit agreement so that it is shown that the relationship of the creditor and debtor has broken down. This is generally where arrears are accrued and the debtor has failed to meet demands for payment. The breach to which the default refers occurred substantially in respect of unlawful charges levied by the Defendant or was the result of impecuniosities caused directly by the taking by the Defendant of penalty charges which were applied unlawfully to the account. The claimant submits that the application of unlawful charges and interest relating to such charges, to the account amounted to £656. The defendant contends at the time of the default the claimant was in arrears of £24. It is thus submitted that the default marker is an inaccurate reflection of the relationship between the creditor and debtor and does not represent a serious breach of the contract. The Defendant has thus disclosed this inaccurate information , contrary to Schedule 1, Part 1, Principle 4 of the Data Protection Act 1998.

 

 

Furthermore this default was incorrectly registered as the Defendant failed to comply with the procedures for registration set out in sections 87, 88 and 89 of the Consumer Credit Act 1974. This therefore denied the claimant the opportunity to remedy any alleged breach of contract. The continued processing of the claimant's data is therefore in breach of Principle 1 of Schedule 1 of the Data protection Act which requires that data shall be processed fairly and lawfully. It is submitted that the defendant's failure to comply with its statutory obligations, affording protection to consumers, demonstrates that the processing of the claimant's data is both unfair and unlawful. It should also be noted in this respect that the defendant failed to respond to a statutory request under s.78 Consumer Credit Act within the statutory time frame and has thus committed a criminal offence.

 

6. Accordingly the Claimant claims:

a) the return of the amounts debited in respect of charges in the sum of £494 and interest charged thereon of £162.96;

b) Court costs;

c) Interest pursuant to section 69 County Courts Act as set out on the attached list of charges or at such rate and for such periods as the court deems just.

d) An order under s.14 to rectify incorrect data

e) An order to prevent the Defendant from processing the Claimant’s data under Sections 10 and

 

I got this from another thread and tried to updated it and remove any parts not relevant to my case.

 

Does this look ok for a POC?

[dbairduk]

I am off on holiday friday, so would like to complete the N1 before then.

Is this suitable to send off?

 

Regards

 

Dave

[Enron]

Looks good, though I would state s.14 Data Protection Act 1998 on 6 (d).

[dbairduk]

Thanks enron, I have another question regarding interest, I have only used the simple spreadhseet to calculate the 8%, is that the interest i should be claiming for in 6 a, or is it the interest in 6 c?

[Enron]

Would take the interest amount and reference out of 6(a), and put those details into 6© - as its at the courts descretion to award it to you if they find in your favour.

[dbairduk]

ok I have ammended that.... Thanks again Enron,

[Enron]

Let me know how you get on.

 

Gonna be doing something similar myself, though will be bundling in requesting judgement on an unenforceable agreement.

[dbairduk]

I will do Enron, I am going to take it into the court tomorow.

I will be on holiday for the next 10 days after that...

[dbairduk]

Aknowlegment of service received

[dbairduk]

Cobbetts have just filed their defence

1 The dfence is filed and served without prejudice to the Defendant's case that the Particulars of Claim do not dislose reasonable grounds for bringing a claim against the defendant to recover the bank charges(and interest theron) reffered to in the Particulars of claim or any other sum(s). In the event that the claim is not properly particularised then the Defendant will apply to strike out the claim and/or for summary judgment in respect of the same.

 

2) The Claimant's claim relates to a credit card account number XXXX XXXX XXXX XXXX

 

 

3) In the Particulars the claimant states "the Defandant debited numerous charges to the [Claimant's] Account"

 

4) No admissions are made as to what charges have been debited to the Claimant's bank account.

 

5) it is averred that the Defendant refunded the sums of £xxx and £xxx.xx on 15 April 2008 and 12 May 2008 which were refunded as a gesture of goodwill to the Claimant in respect of alleged unenforcable charges pleaded within the Claimants Claim. It is denied that the refund of such charges is an admittance on the part of the Defendant that that the alleged charges are unenforcable.

 

[/QUOTE]

I will try and type the rest up regarding the default later.

 

Any thoughts on this? or is this standard procedure from cobbetts?

[dbairduk]

ok I have got my Allocation questionnaire from the court today, and looked up on how to fill it in.

I just want to clarify some points before sending the order for directions

will these only have to be provided if judgement is passed?

 

Copies of any statement or other document relied upon as showing that each and every charge has been made

 

I dont have any statements as i was just given a small sheet with the charges on them?

[dbairduk]

ok well cobettes have submitted their AQ, but before this offered to settle again, I responded by saying only if the default was removed.

Cobettes replied saying they could not by law. I am going to hold out until the last min i think

[yourbank]

Keep going and minor bump in case others what to comment.

[postggj]

to say they cannot remove defaults by law is crap

last year i had five defaults

the finance companies involved removed all the defaults by contacting the credit ref agencies direct

 

dont be hood winked

[dbairduk]

well had a letter from the court today

Notice of Allocation to the Small Claims Track (hearing) and asking for £75 hearing fee

[dbairduk]

My hearing fee is due by friday and still no offer to remove the default with settlement....

Any thoughts? I thought it was normally settled by this stage lol

[postggj]

its who backs down first

a few of mine, got a telephone call the day before trial with offer of settlement

hang in there

 

this will prob go right up to trial before settlement

Edited September 9, 2008 by postggj

[dbairduk]

ok will do, I thought it was the case. I will get the cheque off tomorow

[hellhasnofury]

Hello,

 

Just subbing to your thread and wishing you luck:grin: and good wishes.

 

They will hopefully realise how serious you are, when you send the cheque in for the hearing:D

 

They will be hoping that you get cold feet and pull out. Legal proceedings really do become like a game of chess. The continuance of the proceeding by you paying for the hearing is a bit like check mate:grin:

[dbairduk]

well I hope so, I guess they will need to supply their evidence to the same deadline as mine? Is this the ususal settlement time?

[postggj]

both parties need to suply to each outher documents they will rely on in court by the date instructed by the judge

the norm is 2 weeks, but depends on the court order