Default on credit file, Although Account in Dispute since 2008

[simonjohn]

Hi Folks.

 

Would like some advice in filling out a POC with regards to a part 8 claim for a default on a bank Account which comprises solely of unfair charges.

 

I have been in dispute with the bank since oct 2008 and would like to bring a claim under sec 13.6 of the banking code.

 

looked everywhere on here and can't find one that specifically fitts.

 

Thanks

 

simonjohn

[Jamesx81x]

Its is also breach of data protection act

[simonjohn]

Its is also breach of data protection act

 

 

Thanks james, Despite the fact that I have disputed that their charges are assessable for fairness under the UTCCR, and also that the original Test case found that their charges were assessable for fairness.

 

As they are legaly entitled to , they appealed against the initial descission, which found against them. yet they continue to appeal, upto the highest court, the house of lords.

 

Under any other circumstances, say, it were you or I we would be still guilty or acting unlawfully, and consequently would be refrained from carrying out the act which originally brought us to court in the first place.

[simonjohn]

Recently received a LBA from the Above which solely comprises of unfair bank charges.

 

The account has been in dispute, since the oft test case, which HBOS are fully aware of.

 

If they issue a claim in the county court, then I will submit a defence.

 

However my question is... If they do issue a claim, am I still able to issue a part 8 claim for breach of contract, while their claim for charges a current.

[yourbank]

I would counterclaim on the charges cos it will get stayed that way

[simonjohn]

I would counterclaim on the charges cos it will get stayed that way

 

 

Thanks for the info YB.

 

In essance thats what I will do, However I was planning on bringing an action against my bank to remove a default, under the part 8 procedure and wanted to know if this was possible while a counterclaim was in force.

 

thankyou for you input your help is very much appreciated

[simonjohn]

Bump

[car2403]

Thanks for the info YB.

 

In essance thats what I will do, However I was planning on bringing an action against my bank to remove a default, under the part 8 procedure and wanted to know if this was possible while a counterclaim was in force.

 

thankyou for you input your help is very much appreciated

 

I think Default Removal on this is basis is an abuse of part 8, IMHO. Part 8 is for specific performance only - what you're effectively proposing, I believe, is that the Default is inaccurate because the charges are unfair, but by using part 8, you wouldn't be reclaiming the charges, only asking for the Default to be removed. I don't think such an action, although entirely plausible in procedure, would be frowned upon by a Judge and you may find it struck out with no possibility of reignition under part 7 under the Courts powers in Part 3.

 

My 2p worth...

 

Also, I think it would be difficult to bring a counterclaim under part 8 from a part 7 claim - the procedures are separated for a reason, namely speed of proceedings, which will cause problems. The Court will likely join the part 8 counter with the part 7 claim and manage them together, negating the benefit of using part 8.

[simonjohn]

I think Default Removal on this is basis is an abuse of part 8, IMHO. Part 8 is for specific performance only - what you're effectively proposing, I believe, is that the Default is inaccurate because the charges are unfair, but by using part 8, you wouldn't be reclaiming the charges, only asking for the Default to be removed. I don't think such an action, although entirely plausible in procedure, would be frowned upon by a Judge and you may find it struck out with no possibility of reignition under part 7 under the Courts powers in Part 3.

 

My 2p worth...

 

Also, I think it would be difficult to bring a counterclaim under part 8 from a part 7 claim - the procedures are separated for a reason, namely speed of proceedings, which will cause problems. The Court will likely join the part 8 counter with the part 7 claim and manage them together, negating the benefit of using part 8.

 

Thank you for your response, however I need to clarify a few points.

 

1) I have only received a letter before action from HBOS, they have not yet issued proceedings.

 

2) I am not claiming any charges as I have not paid any charges, Just the usual banks position of adding o/d charges and unfair charges to the account. By the way I opened a parachute account with another bank.

 

3) I sent a letter before action to HBOS with regard to adding charges while the account is in dispute, since the oft test case. HBOS defaulted my account a few months after my inital complaint under sec 13.6 of the banking code.

 

After reading your reply, I think my best position would be to initiate my part 8 claim immediatly for the removal of the default, ie get in before they do. would you concur with this.

 

Thank you for your response, and I do appreciate it.

[car2403]

They shouldn't be bringing any claim against you while the account is in dispute - have you complained to them about charges, started a court claim for them? I'm confused because you say you haven't paid any charges, but you've had them applied - what's the difference? Essentially, the argument is the charge applied is unenforceable as it's unfair, meaning you shouldn't have to pay them. (If you haven't already)

 

If they do take action, (unlikely, IMHO) they are in breach of OFT Debt Collection guidance and a complaint to the OFT/FOS would be in order.

 

Sadly, you're suffering the fate some of our members have experienced - including me - where the Bank defaults you, but doesn't take action to enforce the debt. Instead, they get DCA's (internal and external) in to hound you for payment, in the hope that you cough up. All this while, you have a default on your credit file that is effecting your credit reputation.

 

Your options are;

- Sue for Default removal on the basis above, but this will be stayed as your questioning the same basis as the test case

- Complain to the ICO that the Default is inaccurate (this probably won't get it removed)

- Do nothing

 

There is a possibility you can challenge the enforceability of the overdraft debt, rather than the charges applied that have caused it - this seems to be a way of avoiding the stay. I recommend you read the overdraft/CCA links in my signature. Be aware this is no mean feat;

 

http://www.consumeractiongroup.co.uk/forum/barclays-bank/110184-car2403-barclays-bank-default.html

[simonjohn]

They shouldn't be bringing any claim against you while the account is in dispute - have you complained to them about charges, started a court claim for them? I'm confused because you say you haven't paid any charges, but you've had them applied - what's the difference? Essentially, the argument is the charge applied is unenforceable as it's unfair, meaning you shouldn't have to pay them. (If you haven't already)

 

Not paid any charges as after the initial charge I opend a parachute account with another bank and had my wages etc paid into that

 

If they do take action, (unlikely, IMHO) they are in breach of OFT Debt Collection guidance and a complaint to the OFT/FOS would be in ordeHBOS appear to be a law unto themselves, I have followed the guidance on here about bringing a part 8 claim for removal of a default notice, however as I am sure you can appreciate the cost of £150 is a big dent in the old finances, but I almost have the ammount now saved up to pay for it

 

Sadly, you're suffering the fate some of our members have experienced - including me - where the Bank defaults you, but doesn't take action to enforce the debt. Instead, they get DCA's (internal and external) in to hound you for payment, in the hope that you cough up. All this while, you have a default on your credit file that is effecting your credit reputation.

 

Your options are;

- Sue for Default removal on the basis above, but this will be stayed as your questioning the same basis as the test case

 

This bit has me a little confused, as I was under the impression that as I would be bringing a claim for HBOS's breach of contract under sec 13.6 of the banking code as opposed to unfair penality charges

 

 

- Complain to the ICO that the Default is inaccurate (this probably won't get it removed)

- Do nothing

 

There is a possibility you can challenge the enforceability of the overdraft debt, rather than the charges applied that have caused it - this seems to be a way of avoiding the stay. I recommend you read the overdraft/CCA links in my signature. Be aware this is no mean feat;

 

This I will consider

 

http://www.consumeractiongroup.co.uk/forum/barclays-bank/110184-car2403-barclays-bank-default.html

 

many thanks once again

Edited June 9, 2009 by simonjohn
gramatical errors

[car2403]

Not sure what you mean about the Banking Code?

[simonjohn]

many thanks once again

 

They shouldn't be bringing any claim against you while the account is in dispute - have you complained to them about charges, started a court claim for them? I'm confused because you say you haven't paid any charges, but you've had them applied - what's the difference? Essentially, the argument is the charge applied is unenforceable as it's unfair, meaning you shouldn't have to pay them. (If you haven't already)

 

If they do take action, (unlikely, IMHO) they are in breach of OFT Debt Collection guidance and a complaint to the OFT/FOS would be in order.

 

Sadly, you're suffering the fate some of our members have experienced - including me - where the Bank defaults you, but doesn't take action to enforce the debt. Instead, they get DCA's (internal and external) in to hound you for payment, in the hope that you cough up. All this while, you have a default on your credit file that is effecting your credit reputation.

 

Your options are;

- Sue for Default removal on the basis above, but this will be stayed as your questioning the same basis as the test case

- Complain to the ICO that the Default is inaccurate (this probably won't get it removed)

- Do nothing

 

There is a possibility you can challenge the enforceability of the overdraft debt, rather than the charges applied that have caused it - this seems to be a way of avoiding the stay. I recommend you read the overdraft/CCA links in my signature. Be aware this is no mean feat;

 

http://www.consumeractiongroup.co.uk/forum/barclays-bank/110184-car2403-barclays-bank-default.html

 

Not sure what you mean about the Banking Code?

 

SEE http://www.consumerforums.com/resources/templates-library/49-chalange-a-default-on-a-disputed-account/93-have-you-been-defaulted-on-a-disputed-account

[car2403]

SEE www.consumerforums.com/resources/templates-library/49-chalange-a-default-on-a-disputed-account/93-have-you-been-defaulted-on-a-disputed-account

 

Oh, I see. I was aware of that, but wasn't aware this is what you were thinking of applying in your case.

 

I must be honest, I haven't used this process myself, nor have I seen any threads where it has elsewhere. (Entirely possible I've missed them, though - there are a lot) All the claims I've been involved in surround unfair charges making the default inaccurate and having an unenforceable debt under the CCA.

 

It does seem to make sense though...

[simonjohn]

Oh, I see. I was aware of that, but wasn't aware this is what you were thinking of applying in your case.

 

I must be honest, I haven't used this process myself, nor have I seen any threads where it has elsewhere. (Entirely possible I've missed them, though - there are a lot) All the claims I've been involved in surround unfair charges making the default inaccurate and having an unenforceable debt under the CCA.

 

It does seem to make sense though...

 

Yes, and thanks. I am sure you can see my dilemma, this would be under a part 8 claim which I will instigate A S A P. many thanks for your help

[simonjohn]

Just sorting through my paperwork in preparation for a part 8 claim and whilst scrutinising my default notice realised that Hbos terminated the contract before the expirary date of the default notice.

 

Just wondered if this makes the default notice invalid.

 

 

 

 

http://i606.photobucket.com/albums/tt143/simj13july/img003.jpg.

 

http://i606.photobucket.com/albums/tt143/simj13july/img002-1.jpg

Edited June 15, 2009 by simonjohn

[simonjohn]

Just sorting through my paperwork in preparation for a part 8 claim and whilst scrutinising my default notice realised that Hbos terminated the contract before the expirary date of the default notice.

 

Just wondered if this makes the default notice invalid.

 

 

 

 

http://i606.photobucket.com/albums/tt143/simj13july/img002-1.jpg.

 

http://i606.photobucket.com/albums/tt143/simj13july/img003.jpg

Edited June 16, 2009 by simonjohn

[simonjohn]

Anybody like to give an opinion, promise I wont hold you to your word

[silverfox1961]

Hi,

 

This is unusual. The default gave you plenty of time to remedy the default yet they have terminated your account 13 days later.

 

In my opinion, the fact that they terminated before you could remedy the default leaves them in the poo.

 

If I'm right, they can only now claim the arrears, not the full balance.

 

Hold off taking this as gospel and let someone else comment.

 

fox

[simonjohn]

Oh well looks like im on my own on this one.

 

will let you know how my part 8 claim goes then......

[simonjohn]

Hi,

 

This is unusual. The default gave you plenty of time to remedy the default yet they have terminated your account 13 days later.

 

In my opinion, the fact that they terminated before you could remedy the default leaves them in the poo.

 

If I'm right, they can only now claim the arrears, not the full balance.

 

Hold off taking this as gospel and let someone else comment.

 

fox

 

The fact is the company only gave me 10 days, ie. DN dated 9th which was a friday, Allowing for post/ and received on the 12th this only gave me 10days to respond in, considering that they terminated on the 22nd which is 10 days and not 14 days as required by law. this aside the default notice says remedy breach by 7th feb, however they terminate on 22nd of jan

[car2403]

A word of caution on using part 8.

 

The fee for issuing is £150 and the potential for costs awarded against you is great should you go on to lose.

 

Part 7 should be used if damages have been caused and you're reclaiming a financial sum, will reduce the amount (in most cases) of the issue fee and will be on small claims track, with limits applied to costs in only wasted costs cases as the SCT doesn't allow recovery of costs in any other situation.

[simonjohn]

Bump

[car2403]

Just sorting through my paperwork in preparation for a part 8 claim and whilst scrutinising my default notice realised that Hbos terminated the contract before the expirary date of the default notice.

 

Just wondered if this makes the default notice invalid.

 

 

 

 

http://i606.photobucket.com/albums/tt143/simj13july/img002-1.jpg.

 

http://i606.photobucket.com/albums/tt143/simj13july/img003.jpg

 

It doesn't make the Default Notice invalid, but it does make the Termination of the account unlawful as they haven't allowed the prescribed time to pass before carrying it out. See s.87/s.88 CCA 1974

[lollipop73]

Just been reading up quite a bit about DNs and if you haven't been given a clear 14 days to remedy the breach then it is an invalid default notice.

 

 

Read up on Woodchester v Swayne on the forum-if you type it into the search function it will come up.

 

 

Should the balance have been incorrect re charges or PPI then the arrears are also questionable-but I haven't finished reading up on that aspect fully yet.

 

 

This little nugget of info cheered me right up too.