Abbey Default - Judgment by Default, set aside request received

[jon_boy75]

I need some help with my POC. I will briefly outline the situation here and then attach the POC, but I dont think it's accurate enough.

 

Had a current account with Abbey from 1998-2006. Settled and closed the account after settling out of court for bank charges. Then noticed Default on credit file for £108 only this year. Requested removal of this only for Abbey to then post default with another CRA also. I have never received a default notice, nor was I ever made aware I owed this money. Account marked as satisfied.

Issued Abbey with SAR, CCA request, Cease and Desist processing letter...all of which ignored. Have raised complaints with both the ICO and FOS and still await outcome.

My confusion is this, do I pursue them for breach of DPA or CCA? I think DPA as they've failed to provide any evidence or information to me, just standard letters. Also, the account was closed for 3 years before they posted default with Experian...after contract was terminated. They processed data without my permission.

Any help is greatly appreciated. I want to get the POC right, then I will know exactly where I should focus all my follow up work.

thanks

 

POC

1. Claimant held a Current Account with the Defendant, xxxxxx, from September 1998 to December 2006.

2. A 'default' appears on the Claimant’s credit reference file relating to the account.

3. The Defendant;

a) Has failed to comply with a Statutory Notice issued by the Claimant pursuant to

s.10 & s.12 Data Protection Act 1998 (maybe section 7 also?)

b) Has applied the 'Default' without complying with the requirements of s.87 Consumer Credit Act 1974

c) Continues to process data regarding the alleged default with Credit Reference Agencies, even after the termination of the contract.

5. The Claimant respectfully seeks;

a) Rectification, blocking, erasure or destruction of the inaccurate data, which the Court can order under s.14 Data Protection Act 1998 – including details passed to the Credit Reference Agencies

b) Costs and damages at the discretion of the Court due to the damage to the claimants creditworthiness. The claimant has suffered a significant waste of personal time in pursuing this matter through the correct channels.

[clarkenuttal]

Follow my thread and thinking you are on same boat as me you can use letters I sent to RBS as templates. I think they would help you big time. Would be happy to help

All the best

Cheers

[jon_boy75]

Any advice would be much appreciated. In summary:

 

• Held current acc with Abbey until 2006. Paid off and closed in 2006 due to excessive charging.
  
• Noticed default on credit report this year, challenged this
  
• No default notice available, no letters, no warning, no nothing
  
• Complaint ongoing with FOS and ICO
  
• Received Data Access via SAR...nothing in there
  
• Initiated court claim....no defence from Abbey, so Judgment by Default
  

Not sure where to go from here? I imagine Abbey will ask for set aside, in which case I will request disclosure using CPR 31.16 when the time comes. I should stress, I dont owe them anything and am not trying to get out of an agreement. I didnt know they were going to default me in 2006 as they didnt tell me. It was for £108, which I paid off anyway.

Have heard in various forums of the FOS finding in favor of banks, despite absence of the DN. Am wondering if this is why CPR 31.16 in court is now the best option for me.

Am now waiting to see what happens, I havent used enforcement yet while I await the decision of the FOS which could help my case.

Finally, I have requested costs, but unsure whether to change this fixed amount to be decided by court instead.

Jon

[car2403]

2 threads merged

 

When was Judgment given?

[jon_boy75]

August 19th 2009

[jon_boy75]

Follow my thread and thinking you are on same boat as me you can use letters I sent to RBS as templates. I think they would help you big time. Would be happy to help

All the best

Cheers

 

thankyou, I will check your thread asap

[jon_boy75]

is there any point at which we can amend our POC? I'm tempted to remove the reference to 'damage to creditworthiness' and simply allow the court to decide. I dont want this to be reallocated....if it ever gets allocated in the first place!!

[car2403]

I'd wait and see.

 

They have 14 days in which to request a set aside.

[jon_boy75]

I'd wait and see.

 

They have 14 days in which to request a set aside.

 

Even after 14 days have passed they can still request set-aside, right? In fact, even after 3 months they can, as far as i know.

 

DJs are more inclined to hear cases than not.

 

Anyway, you're right...it's just a waiting game right now.

thanks

Jon

[jon_boy75]

edit

Edited August 26, 2009 by jon_boy75

[car2403]

Ok, so didn't want to post this until I clarified something, so here goes.

 

Now you have Judgment, the Judgment debt exists and can be enforced. By that I mean you can seek enforcement from the Court, using various methods;

 

http://www.hmcourts-service.gov.uk/courtfinder/forms/ex321_0406.pdf

 

The most appropriate appears to be County Court Bailiff, or High Court Enforcement Officer

 

http://www.hmcourts-service.gov.uk/courtfinder/forms/ex345_web_0809.pdf

 

www.hceo.gov.uk

 

These shouldn't be entered in to lightly, so read the links and post back if you have questions.

 

Of course there's still the chance of a set aside, in which case you might not want to take enforcement action immediately, but some would say a CCJ should be enforced immediately - they would do the same to you, if they had the chance

[jon_boy75]

Ok, so didn't want to post this until I clarified something, so here goes.

 

Now you have Judgment, the Judgment debt exists and can be enforced. By that I mean you can seek enforcement from the Court, using various methods;

 

http://www.hmcourts-service.gov.uk/courtfinder/forms/ex321_0406.pdf

 

The most appropriate appears to be County Court Bailiff, or High Court Enforcement Officer

 

http://www.hmcourts-service.gov.uk/courtfinder/forms/ex345_web_0809.pdf

 

www.hceo.gov.uk

 

These shouldn't be entered in to lightly, so read the links and post back if you have questions.

 

Of course there's still the chance of a set aside, in which case you might not want to take enforcement action immediately, but some would say a CCJ should be enforced immediately - they would do the same to you, if they had the chance

 

Thanks for this. I am still considering my options as I'm fairly certain they will request set aside, and maybe going for enforcement now would be a waste of the fee...?

I was interested to read this if I went for High Court Enforcement...

 

"You can ask an HCEO to enforce any judgment over £600 provided it is not regulated under the Consumer Credit Act 1974 (these agreements can only be enforced in county court by their own bailiffs)."

 

My claim did reference the CCA, in that s87 covers defaults. Although no default exists...so perhaps I'm wrong.

 

So, if I did go for enforcement, I would rather use these high court guys as they won't mess around. I believe you were advised similarly during your previous O2 battle.

 

I wonder if it makes any difference whatsoever if I try to enforce now or wait 28 days. I could not find any information regarding time limits for requesting set asides for judgments.

 

(by the way, the link on your post is dead - http://www.hceoa.org.uk)

[jon_boy75]

I am also thinking of removing all reference to the DPA from my claim, and just focusing on the CCA. That way it cannot get reallocated and MUST be considered simple enough to deal with on the SCT.

My argument would then be this -

No Default Notice, Default Letters, Letters of Assignment or Termination = Unenforceable Default

 

[car2403]

I am also thinking of removing all reference to the DPA from my claim, and just focusing on the CCA. That way it cannot get reallocated and MUST be considered simple enough to deal with on the SCT.

My argument would then be this -

No Default Notice, Default Letters, Letters of Assignment or Termination = Unenforceable Default

 

 

If the agreement is unenforceable.

 

If it isn't, they can just reissue another Default Notice and start the whole process over again.

[jon_boy75]

If the agreement is unenforceable.

 

If it isn't, they can just reissue another Default Notice and start the whole process over again.

 

whoa!

I'm not disputing the agreement. Although I have only seen my original bank account application form so far...no agreement per se.

Are you saying that I can't just try to disprove the validity of the DN...in that it doesn't exist. Surely I can pursue them on the grounds that they never issued a DN, or any correspondence relating to a potential default, regardless of the original agreement...?

[car2403]

This is for a Bank Account, isn't it? Overdraft?

 

If so, there is no prescribed format for an agreement - it is excluded from the format/content requirements by the OFT. Take a look at the Overdrafts link in my signature.

 

The termination of the account has to happen in the "agreed" (note, not "prescribed") format. In short, they should have sent a letter telling you how they would terminate the agreement, then have complied with that when they eventually did. If they can show this letter was sent, (as well as complying with the OFT's s.74 Determination) the default would be accurate.

[jon_boy75]

This is for a Bank Account, isn't it? Overdraft?

 

If so, there is no prescribed format for an agreement - it is excluded from the format/content requirements by the OFT. Take a look at the Overdrafts link in my signature.

 

The termination of the account has to happen in the "agreed" (note, not "prescribed") format. In short, they should have sent a letter telling you how they would terminate the agreement, then have complied with that when they eventually did. If they can show this letter was sent, (as well as complying with the OFT's s.74 Determination) the default would be accurate.

 

Yes, it was a bank account that was overdrawn.

The issue for me is that I didnt receive any correspondence from Abbey suggesting a default was forthcoming, or any letter suggesting termination of any kind. I thought this was a requirement under the CCA.

 

I requested all of this when I sent the SAR, but nothing was provided. I guess I'm a little baffled now, this isn't as clear cut as i thought it might be.

[jon_boy75]

just to clarify, there was no agreed overdraft, I had just gone overdrawn.

 

not sure how this changes things. I am reading the OD and CCA threads

[car2403]

Yes, it was a bank account that was overdrawn.

The issue for me is that I didnt receive any correspondence from Abbey suggesting a default was forthcoming, or any letter suggesting termination of any kind. I thought this was a requirement under the CCA.

 

The challenge here is not what did you receive, but what was sent. There is a difference. If they show the letter was sent, that will be enough, unfortunately. (Of course it needs to be compliant, so we're back to do they have proof of it being sent and complying with their obligations)

 

I requested all of this when I sent the SAR, but nothing was provided. I guess I'm a little baffled now, this isn't as clear cut as i thought it might be.

 

We've seen cases where documentation has surfaced after a S.A.R was responded to. The question would be would what they provide when asked for satisfy a Judge that the letter was sent? If it's a "yes", there's little you can do.

 

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

 

just to clarify, there was no agreed overdraft, I had just gone overdrawn.

 

In which case there was still an overdraft, so the Determination still applies. (The Determination is outlined in the link I referred you to earlier, Overdrafts, in my signature)

[jon_boy75]

The challenge here is not what did you receive, but what was sent. There is a difference. If they show the letter was sent, that will be enough, unfortunately. (Of course it needs to be compliant, so we're back to do they have proof of it being sent and complying with their obligations)

 

 

 

We've seen cases where documentation has surfaced after a S.A.R was responded to. The question would be would what they provide when asked for satisfy a Judge that the letter was sent? If it's a "yes", there's little you can do.

 

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

 

 

 

In which case there was still an overdraft, so the Determination still applies. (The Determination is outlined in the link I referred you to earlier, Overdrafts, in my signature)

 

thanks for your help car, much appreciated

 

So, what would constitute proof of sending AND compliance of the DN, or would this vary depending on the judge? Abbey have admitted to me twice they have no DN, or letters pertaining to a DN. They sent me a blank template letter.

If they suddenly produce docs in court that I've asked for for over 6 months, will this not look like abuse of process, in that they could have avoided court after all?

sorry, lots of questions!

[car2403]

So, what would constitute proof of sending AND compliance of the DN, or would this vary depending on the judge?

 

No - have a read of the links I've provided.

 

They need to show that they told you how they would terminate the agreement prior to or shortly after you entered in to it, plus that they terminated it correctly as agreed.

 

There is no need for a Default Notice on an overdraft debt. (The agreement being exempt from the requirements of s.87/s.88 of the CCA 1974)

 

Abbey have admitted to me twice they have no DN, or letters pertaining to a DN.

 

See above.

 

They sent me a blank template letter.

 

If a Judge decides that was sent and it complies with the agreement they had with you, then that will suffice.

 

If they suddenly produce docs in court that I've asked for for over 6 months, will this not look like abuse of process, in that they could have avoided court after all?

 

Yes, in which case you may be able to recover costs against them for acting unreasonably. As this will likely be a small claim, that won't be much.

 

It also depends on whether the Judge considers that letter "data" in the meaning of the DPA as to whether he thinks they should have disclosed it under your request or not. TBH, a template will probably not be classed as data, but probably will satisfy him if they can show one was sent.

 

sorry, lots of questions!

 

No probs - keep 'em coming, as I need you to be fully informed before you decide how to proceed

[jon_boy75]

No - have a read of the links I've provided.

 

They need to show that they told you how they would terminate the agreement prior to or shortly after you entered in to it, plus that they terminated it correctly as agreed.

 

There is no need for a Default Notice on an overdraft debt. (The agreement being exempt from the requirements of s.87/s.88 of the CCA 1974)

 

 

 

See above.

 

 

 

If a Judge decides that was sent and it complies with the agreement they had with you, then that will suffice.

 

 

 

Yes, in which case you may be able to recover costs against them for acting unreasonably. As this will likely be a small claim, that won't be much.

 

It also depends on whether the Judge considers that letter "data" in the meaning of the DPA as to whether he thinks they should have disclosed it under your request or not. TBH, a template will probably not be classed as data, but probably will satisfy him if they can show one was sent.

 

 

 

No probs - keep 'em coming, as I need you to be fully informed before you decide how to proceed

 

Ok, thanks. I am reading your links, but struggling to keep up. I am fast losing confidence that I have a case here, or at least a strong one. If the overdraft doesn't come under the CCA, they can just default me without notice, which is what they've done.

 

So, it all comes down to what they sent me at the time, which I can say with absolute confidence was nothing. However, it would be easy for them to just prodice their standard letters, without my name or account details on them, and just claim they sent these.

 

Doesn't seem particularly fair? I will continue to read, but feel I'm coming to a dead end. I need the agreement, in whatever form.

 

Does a signed application form for a current account constitute and agreement?

[jon_boy75]

so i can use this then...?

 

http://www.consumeractiongroup.co.uk/forum/barclays-bank/110184-car2403-barclays-bank-default.html#post1074202

[car2403]

Does a signed application form for a current account constitute and agreement?

 

No.

 

The Account is governed by the FSA.

 

The Overdraft is governed by the OFT.

 

It's the Overdraft you're challenging, so the OFT's Determination applies.

 

so i can use this then...?

 

http://www.consumeractiongroup.co.uk/forum/barclays-bank/110184-car2403-barclays-bank-default.html#post1074202

 

Yes, to challenge them, but keep reading that thread

[jon_boy75]

No.

 

The Account is governed by the FSA.

 

The Overdraft is governed by the OFT.

 

It's the Overdraft you're challenging, so the OFT's Determination applies.

 

 

 

Yes, to challenge them, but keep reading that thread

 

ok, I'm with you now....took me a while to get there! No wonder we dont have too many Litigants in Person, this stuff is complex, and I consider myself to have half a brain!

 

I'm gonna absorb all of that thread now before I ask any more dumbass questions