Abbey Default - Judgment by Default, set aside request received

[car2403]

2 threads merged

 

When was Judgment given?

[car2403]

I'd wait and see.

 

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

[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

[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.

[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.

[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)

[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

[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

[car2403]

[car2403]

Need to see the witness statement

 

What was the date of the Judgment and what is the date of this application, along with when esxactly did you receive it?

[car2403]

It's probably ok to post it here - just remove any identifying information first

[car2403]

You can PM/email it to me if you like

[car2403]

As they haven't received the claim form, they will get the set aside. although they could have had it as they seem to think they have a defence as well.

 

Really, those POC need to be elaborated on. They've applied for Summary Judgment as the POC are vague, according to them. I don't agree, but there is more information that could have been given to them.

 

Where there any directions from the Court, a Notice of hearing, or anything? What was contained on their application?

[car2403]

I know this is brief, but it specified on MCOL to keep it brief! Oops:confused:

 

Something like this;

 

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/110146-car2403-hfc-bank-default-6.html#post1305973

[car2403]

car

 

quick question, CCA doesn't apply to me as I dont owe any money (I think?). That being said, would this now be purely a DPA issue?

 

Yes, quite, but compliance with the requirements of the CCA will still be an issue in deciding whether they have processed your data accurately under the DPA.

 

I'm at a loss as to why they decide to argue against accounts that no longer have any balance owing on them

[car2403]

They're stupid?

[car2403]

For me, the Default Notice issues are secondary and should be used in the alternative to the other ones you've mentioned.

[car2403]

Assessment by the ICO, received today:

 

"From the information you have provided it appears likely that Abbey has failed to comply with the sixth principle in this case. This is because Abbey did not respond to your SAR within the 40 day statutory limit.

 

In light of this it is my assessment that it is unlikely that Abbey has complied with the DPA in this case. This assessment is based solely on the information you provided.

 

In terms of the information you feel has not been provided to you, Abbey have stated in their letter dated 27 July 2009 that they have sent you all the personal data they hold in relation to your account. However, I will ask them to confirm that this is the case and will write to let you know."

 

 

Yes, but what will they do about it, though?

 

They'll write to them and ask them to comply in future, that's what!

 

[car2403]

The ICO is as much use as an ashtray on a motorbike

[car2403]

I'm actually going to ask them how many times they've written to Abbey with the same recommendation about future conduct, and if they believe they've learnt their lesson

 

Make that a Freedom of Information Act request, just to add some pressure