MBNA ignoring everything

[jowil1973]

Hi,

 

I issued a SAR request on MBNA through a claims company over a year ago. The claims company dropped the case (and gave me a refund) and I requested the information received in response to the CCA request and SAR.

 

Believing MBNA's responses to be inadequate I wrote to them giving them all the details of the original SAR and explaining why their response was inadequate.

 

They ignored my letter so I wrote a LBA and again received no response. I then issued an N1 at County Court.

 

MBNA filed no response and I was awarded Judgment By Default - including costs.

 

However since then I received a letter from MBNA saying I had no argument and not mentioning the Court action at all.

 

I called the Court and was advised to write to the Court Manager (includiong a copy of MBNA's letter) asking him to request a Judge look at the Judgment (pointing out it was mainly for information with only costs forming the financial part) but received a one line response saying it is not for the Court to advise me how to proceed.

 

All the info and documents I can find are about enforcing the financial part of the Judgment, can anyone advise how do I get my information?

 

MBNA have marked my credit file as default.

 

I'm wondering if MBNA don't want to go to Court due to 'doctoring' my application form??

[supasnooper]

Have you reported MBNA to the ICO ?.

 

If not, do so - Complaints about data protection policy - ICO

 

Did you ask the Court to make an order of compliance when you submitted your SAR claim?

[jowil1973]

Hi Supasnooper, thanks for helping me again!

 

I haven't reported them to the ICO, I will do that now though.

 

I thought the N1 form was clear that it was the information that I was after and that it did seek an order that the Defendant complies (POC#7)??

 

The N1 was laid out as follows:

 

Defendant: MBNA

 

Brief details of claim: Order under Section 7 and Section 15(2) of the Data Protection Act 1998

 

Value: Damage

 

Particulars of claim:

 

1. The Defendant is a Data Controller within the meaning of the Data Protection Act and is responsible for the processing of data of which the Claimant is a Subject.

 

2. The Claimant has an account number ("the Account") with the Defendant which was opened on or around 2003.

 

3. On 6th March 2008 XXXXXXXXXXXXXXXX, acting on behalf of the Claimant, sent a Subject Access Request, pursuant to Section 7 of the Data Protection Act 1998 to the Defendant.

 

4. The Defendant has failed to comply.

 

5. By virtue of the Defendants failure to comply with the Subject Access Request the Claimant has suffered damage.

 

6. The damage caused is:

Extra costs incurred in addition to Court costs due to the Defendants failure to comply - this includes the cost of additional correspondence and time spent preparing documents and seeking legal advice. I estimate the cost to be £174.86 (see attached schedule 1).

 

7. The Claimant seeks an order that the Defendant do comply with the Claimants Subject Access Request.

 

8. Under the terms of Section 15(2) of the Data Protection Act 1998, where the Defendant contests that information requested under the Claimants Subject Access Request is not included within the scope of Section 7 of the Data Protection Act 1998, the Claimant requests that the Court inspects that information and where it finds that the Defendants opinion is unfounded, that it orders such information be included within the information supplied to the Claimant under the Subject Access Request.

 

9. To remind the Defendant that their obligation under S.7 is to supply all data held by their company irrespective of the date of such data. If it is contended that they do not hold such data before such a time, please could they confirm this by providing the Certificate of Destruction.

 

I was awarded Judgment by Default on 28th October and received a letter from MBNA dated 9th November (a copy was sent to the Court by me with my request for the Judge to look at my original claim) which 'thanked' me for my reply to their response under Section 78 of the CCA. Their readings of the terms of executed credit agreement suggests my objections are not well founded.... etc etc. The letter isn't signed and included are some 'copies' of two different signature forms, one of which looks very dodgy..?

[supasnooper]

As you requested a Court Order in your POC, you are entitled to a Court Order to be issued to enforce this.

 

I would write again to the Court Manager, enclosing a copy of your POC's and your Judgment Order, asking for this to be placed before a Judge for an Order to be issued to MBNA for compliance.

[supasnooper]

These were the thoughts of another member of the Site Team, car2403 -

 

The OP needs to enforce Judgment, probably by asking the Court for an Order of Specific Performance, stating that they must supply the info requested, or face further enforcement action.

What that looks like, I don't know, but while he has Judgment, he needs to act on it, or they will walk all over him for forever and a day.

 

So, I would get cracking on what my esteemed team colleague has suggested and get the Court to issue the Order of Specific Performance,

[jowil1973]

Thanks for the input both!

 

How does this letter look..?

 

LETTER REQUESTING JUDGES ATTENTION

Re: XXXXXXXXX

Dear Sirs,

I was awarded a Judgment for Claimant (in default) in relation to claim XXXXXXX on 28th October 2009. This claim was against MBNA. I enclose a copy of the Judgement Order.

I have received no payments from MBNA and no further information other than a letter dated 9th November 2009, which makes no mention of this Judgment. Please find a copy of this letter enclosed. There has been no acknowledgment of this Judgement by MBNA at all.

I am a Litigant In Person and have no legal training, however after seeking advice I believe that as I requested a Court Order in my original Particulars Of Claim I am entitled to a Court Order to enforce this. I would now ask that this matter be put before a Judge, requesting that the Judgement be enforced by issuing an Order of Specific Performance, stating that MBNA must supply the information requested or face further action.

Yours Sincerely,

[supasnooper]

The content looks fine.

 

I'd head the letter with the claim details and then begin the letter asking for the letter to be placed in front of a Judge.

 

I would also include a copy of your original Particulars of Claim to remove any doubt as to what you specifically asked for.

 

I'd also ask for a Costs Order as well if MBNA have not paid up.

[jowil1973]

Thanks, have adapted slightly and added a couple of lines from car2403's suggestions on another thread, how's this look?

 

The Court Manager

County Court

 

28th December 2009

 

Claim: XXXXXXXXX Mr XXXXXXXXX –v- MBNA

 

Dear Sirs,

Please can this letter be put before a Judge.

I was awarded a Judgment for Claimant (in default) in relation to claim no. XXXXXXXXX Mr XXXXXXXXX –v- MBNA, on 28th October 2009. I enclose a copy of the N1 claim form and Judgement Order.

I have received no payments and there has been no acknowledgment of this Judgement by MBNA at all. The only further information received from MBNA has been a letter dated 9th November 2009, which makes no mention of this Judgment. Please find a copy of this letter enclosed.

I am a Litigant In Person and have no legal training, however after seeking advice I believe that as I requested a Court Order in my original Particulars Of Claim (copy enclosed) I am entitled to a Court Order to enforce this. I would now ask that this matter be put before a Judge, requesting that the Judgement be enforced by issuing an Order of Specific Performance, stating that MBNA must supply the information requested or face further action. This is a specific option available to the Court contained within its powers under s.7(9) Data Protection Act 1998. I am asking that the Court order the Defendant to specifically perform an action, namely complying with my s.7 Data Protection Act Subject Access Request. I am also seeking a Costs Order to enforce payment.

 

Yours Sincerely,

[citizenB]

That looks fine, jowil. Please let us know what happens:)

[jowil1973]

Finally, I have received a response from the Judge:

 

Dear xxxxxxxxxxx,

 

Re: xxxxxxxxxxxxx -v- MBNA Europe Bank Ltd

Case No: xxxxxxxxxxx

 

Your letter dated 2 January 2010 has been placed before the District Judge who directs that 'It is a matter for the Claimant how he proceeds and he applied for a default judgement for the payment of a sum of money on 23 October 2009. A Judge cannot assist him in correspondence. If he wishes to make a formal application to Court he should do so.'

 

Yours sincerely,

 

xxxxxxxxxxxx

Courts Section

 

I'm thoroughly lost now as I thought my letter was a formal application for an Order of Specific Action and an Order for Costs.

 

How do I enforce my default judgement???

[citizenB]

Hmmm, I am wondering if they are saying you need to do this on a proper court form and pay more bliddy fees, which should be recoverable from MBNA.

 

I will hit the SOS button for you.

[jowil1973]

Any ideas yet?

 

If neccessary I'll pay a fee but I can't believe MBNA can just ignore everything?

[diddydicky]

you need to make a formal application. i think it is n244 but no doubt someone will confirm this

 

its basically the same as wot you rit- but adressed to the court itself leaving out the "please put this in front of a judge part"

[jowil1973]

Is anyone able to help advise a bit more on this please? I really want to get a result having been given my Judgement by Default and I'm not sure how I would fill out and issue an n244 (or even if that really is the right form)?

 

Thanks.

[bazaar]

I'd look at how MBNA do it. IE, if you'd owed money to them and they got Default judgement, what do they do next?

Youve got the tables turned here, so you should IMHO kick them where it hurts.

I think as long as you dont do anything they wouldnt do themselves, they cant argue and would have to pay up.

[diddydicky]

sorry wrong thread

Edited February 11, 2010 by diddydicky

[palomino]

How close are you to the court? It helps to go there in person if at all feasible.

 

As someone has mentioned above I expect you will need to fill in another form and submit. I have no idea if you have to pay another fee but it wouldn't surprise me if you did.

Why the person who wrote to you didn't mention this course of action is beyond me.

 

One other point : if you really want to wake MBNA up then apply to have their banking certificate revoked. If that happened they would be out of business at a stroke, although the chances of this actually happening in your case are zilch (remember BCCI).

It will, however, cause a certain amount of consternation.

[caro]

This link may help. Enforcing judgment

[gezwee]

Sorry, but I have a nagging feeling that the opportunity to enforce has now passed.

 

The OP has effectively requested a monetary judgement by default rather than applying for an order of compliance within original claim.

 

The part 7 templates we use are open to interpretation by the DJ and can sometimes be seen as an either/or.

 

Fortunately on this occassion the DJ has not directed to part 8.

 

I have a nasty feeling that the OP would need to effectively set-aside his own favourable judgement in order to request a specific performance be so ordered in its place.

 

Depending on the OP's current circumstances it may be preferable to enforce this one and start the process again.

 

Could be very wrong on this but DJ's (having now met 1 or 2) are only human and if they see an easy day on the cards they'll take it just like the rest of us.

 

Gez

[jowil1973]

Hi Gez,

 

How do I go about getting this Judgment set-aside and requesting another?

 

I'm assuming there's a specific form and a fee to pay?

[gezwee]

Hi Gez,

 

How do I go about getting this Judgment set-aside and requesting another?

 

I'm assuming there's a specific form and a fee to pay?

 

Hi Jowil

 

I would advise strongly against having your own judgement set aside.

 

It doesnt appear that your local DJ is interested in assisting you with enforcing a specific performance of the respondent......... unfortunately you would have needed to write to the court pre judgement to ensure that an order included the release of data. To do so now would effectively be reversing the monetary judgement already made (setting aside), this in itself leaves the door open for MBNA to defend at limited costs. In the event that your friendly DJ is then 'misdirected' into moving to part 8 you could leave yourself open to costs!

 

I'd enforce the judgement as it stands and recover any money due to you under the order.

 

Put this one down to experience, you can of course SAR again after a reasonable period....

 

Gez

[jowil1973]

So does that mean that despite not issuing a Defence and ignoring my Judgement by Default, MBNA can get away with just ignoring everything because I folllowed the Courts advice in filing for Judgement by Default??!!

 

That is ridiculous!

 

Surely I can go for unlawful rescision of the account as its been marked as a Default with the CRA's?

[diddydicky]

no, i think what it means is that you went for the "wrong " order and that mbna have merely taken advantage of your mistake.

 

(just as you would if the boot were on the other foot- i suspect) .

[jowil1973]

So what should I have done? There didn't appear to be many options on the Court form.

 

And where does that leave me now?

 

As I said can I go for unlawful recission?

[diddydicky]

So what should I have done? There didn't appear to be many options on the Court form.

 

And where does that leave me now?

 

As I said can I go for unlawful recission?

 

IMO you would need to make another application to order them to provide the information you want under the SAR