These guys at Gmac don’t get it; do they?**FINISHED**

[donelly]

1st credit registered a default against my credit file, I sent a CCA request but they defaulted on my CCA request. I issued proceedings against them for £500 plus cost for damages and an order to to remove default. They denied ever receiving my CCA request and are counter claiming for the defaulted ammount. They have also included my spouse in their counterclaim, I would ideally like to increase my damages to about £2000 but had to limit the damages to £500 at the time of issuing the claim becuase I couldn't afford the court fee at the time; now that 1st direct had included my spouse in their counterclaim, can my wife counter claim for damages?

 

Below is my defence to their counterclaim, comments and feedback will be higly appreciated.

=====

 

 

Counter Claim Defence

• The Claimant made a request under section 77(1) and 78(1) of the consumer credit Act 1974 on the 30th August 2006. Please see appendix i for a copy of the original request.
  
• The request was sent Via Royal Mail 1st Class recorded delivery reference number DH 3174 5573 8GB. Please see appendix ii for a copy of the receipt
  
• The request was delivered to the claimant registered address on 1st October 2006 and signed for by one H. Louison. Please see appendix iii for a copy of proof of delivery.
  
• The claimant enclosed the statutory fee of £1 for the request under section 77 and 78 of the Consumer Credit Act 1974 by Postal Order which has since been cashed by the defendant. Please see appendix iv for the receipt of purchase of the postal order.
  
• The defendant was notified of its obligation under section S189 of the consumer Credit Act 1974 to supply a true copy of the alleged agreement referred to whether or not the defendant was the original creditor but had failed to supply these documents
  
• The claimant sent another request to the defendant on the 22nd September reminding the defendant of its obligation to supply the information required to substantiate the default registered against the claimant credit file. please see appendix v
  
• In the default entry against the claimant, the defendant registered creditor to be the defendant and the account type as “Hire Purchase”, however in the defendant’s defence and counterclaim, the account type is recorded as “Overdraft” on a bank account this is contradictory. Please see appendix v for a screen shot of the default registered against the claimant by the defendant.
  
• The defendant is to-date in breach of the section 77 and 78 of the CCA 1974.
  
• The defendant had failed to establish neither the presence of a “Hire Purchase” agreement nor a deed of assignment for the purported debt.
  
• The claimant has suffered and continues to suffer damages and distress as a result of the prejudicial information registered on the claimant credit file.
  
• The claimant booked an holiday to Tunisia with his family from 20th – 27th August 200 and applied for a new bank account with a £500 overdraft facility with First Direct, the intention was to spend the overdraft on holiday until the defendant’s salary is paid into the new account.
  
• The account was opened by First Direct on 14th August 2006 with the £500 overdraft facility. Please see appendix vi for a copy of the letter confirm that the account was opened.
  
• On the 17th August 2006 the claimant received a phone from First Direct Bank that the account opened three days earlier had been closed because of “adverse information” recorded on the claimant credit file by the defendant. Please see appendix vii for a copy of the statement confirming that the claimant account with First Direct has been closed.
  
• The claimant and his family proceeded on the holiday as planned without spending money, for this the claimant and his family suffered distress.
  
• The defendant had failed to establish the presence of a credit agreement to substantiate the default recorded in the claimant’s credit file, the information registered in the claimant’s credit file is contradictory and does not have the claimant’s consent to hold, process or share the claimants information with third parties, consequently the defendant is in breach of the Data Protection Act 1998
  
• Section 14(1) and 14(2) of the Data Protection Act 1998 stipulates that the court can order the destruction of data held if proven to be inaccurate or unsubstantiated.
  
• The claimant denies that the defendant sent written notices of assignment of the purported debt on the 7th September 2005 and 20th October 2006.
  
• The claimant requests that the defendant provide true cetified copies of the notices.
  
• The claimant denies existence of any agreement with the defendant consequently the claimant denies liability for £1155.00 counterclaimed for by the defendant.

The claimant believes that the facts stated in this defence are true.

[zootscoot]

Can you post their defence and counterclaim?

[donelly]

Here is the defence and counterclaim in full. I have issued proceedings against Lloyds TSB for £2250 in bank charges and I am quite willing to pay the money owed TSB which is actually £1035 directly to Lloyds TSB from penalty charges refund. My strategy is to get the default which was registered/flagged by 1st Credit removed. the debt was sold to 1st Credit.

 

========

• The Defendant denies that the claimant made a request under section 77(1) or section 78(1) of the Consumer Credit Act 1974
  
• The Claimant wrote to the Defendant on 22nd September 2006 which letter referred to a letter dated 30th August 20006. The letter dated 22nd September did not constitute a request under section 77(1) or section 78(1) as it was not accompanied by the fee payable for such request.
  
• The defendant denies receiving statutory notice under the data protection Act 1998 from the Claimant and further denies that it has breached the claimant’s rights under that Act
  
• As the Claimant is aware the Defendant is the assignee of the debt previously due from the Claimant and the Third Part to Lloyds TSB Bank. Following receipt of the letter of 22nd September 2006 from the Claimants, the Defendant wrote to the Claimant on 26th September 2006 informing him that the Defendant’s client (Lloyds TSB) would be informed of the request and the document would be sent to the Claimant as soon as possible.
  
• It is not admitted that the Claimant has suffered damage and the Claimant is put to proof of such damages
  
• It is denied that the Claimant is entitled to an order for the destruction of any data held by the defendant or to the removal of the default registered on the Claimant’s credit file.
  
• The Defendant will seek to set off any sums found under the counterclaim herein against any sums that are found due to the Claimant.

Defendant Counterclaim against Claimant and Third Party

 

• The Claimant and the Third Party were jointly and severally liable to Lloyds TSB Bank in respect of an overdrawn bank account
  
• The debt due from the Claimant and Third Party was assigned to the Defendant on 5th September 2005. Written notices of the assignment were sent to the Claimant on 7th September and to the Third Party on 20th October 2006.
  
• The amount due from the Claimant and Third Party which was the subject of the assignment was £1155.00. Neither the Claimant nor the third party has paid any part of the debt to the Defendant following the assignment.
  
• The Defendant claims interest at the rate of 8% per annum pursuant to section 69 of the County Courts Act 1984 from 5th September 2005 to the date hereof amounting to £108.35 and continuing at a daily rate of 25 pence per day until judgement or sooner payment.

And the Defendant counterclaims;

 

a. £1155.00

b. Interest thereon as particularised in paragraph 10 above to the date hereof of £108.35

c. Continuing interest at the rate of 25 pence per day

[donelly]

Here is my statement for my court hearing coming up on the 15th December, suggestions on how to improve the statement would be higly appreciated.

 

==========

 

 

CLAIMANT’S STATEMENT

 

• The claimant has had a mortgage contract with the defendant, account no. XXXXX since December 2003, which is conducted on their standard terms and conditions
  
• The claimant is claiming a refund of money taken in the form of penalty charges over the last 3 years in the form arrears fee, non-payment by Direct Debit fee, own building Insurance Fee, solicitors Instruction fee Unpaid cheque fee and Unpaid Direct Debit fee.
  
• The Bank's charges are a disproportionate penalty, and therefore unenforceable as they are contrary to common law.
  
• Further, as a disproportionate penalty they are invalid under the Unfair (Contracts) Terms Act 1977 s.4 and under the Unfair Terms in Consumer Contracts Regulations 1999. Para.8 and sch.2 (1)(e).
  
• In the event that the charges are not a penalty then they are unreasonable within the meaning of the Supply of Goods and Services Act 1982 s.15.
  
• In the defendant's defence and counterclaim, the defendant argued (paragraph 9.1 of defence and counterclaim ) that an account in arrears requires and are subject to greater scrutiny by the defendant’s employee and agents than account that paid up to date. Whilst this may be true the defendant had and is already paying for this service by way of higher interest rate which is currently at 0.75% above the defendant’s standard variable rate equivalent of about £139 per month even though the claimant's account has being paying up to date for the last 16 months.
  
• Moreso the "greater scrutiny" reffered to by the defendant is almost certainly applied automatically through their computerised systems as confirmed by the defendant in the information provided under S.A.R - (Subject Access Request) that monthly arrears statement are generated automatically.
   
  Furthermore the issue is only whether the money levied by the Defendant in respect of the claimant’s contractual breaches greatly exceeds their genuine pre-estimate of loss, if this so then it renders the “fee” a penalty which is unlawful under common law. Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79).
  
• By making the claimant pay for the same service twice by way of an interest rate currently at 0.75% above the defendant's standard variable rate and by way of a monthly fee is disproportionate and does not pass the “good faith” test under the Unfair Terms in Consumer Contracts Regulations 1999. Paragraph 1(e) of Schedule 2 to the Regulations provides that a term “requiring any consumer who fails to fulfil his/her obligation to pay a disproportionately high sum by way of compensation” may be unfair.

[donelly]

@ zootscoot

 

Do you have any suggestion on how to improve my statement please?

[alanfromderby]

I would also take into consideration that the "greater scrutiny" is almost certainly applied automatically through their computerised systems.

This would simply flag any activity that requires intervention - probably even giving a prompt as to what action should be taken. This appears to be the type of system operated by Bristol & West, and I would imagine it is standard throughout the industry.

[donelly]

Thanks Alan,

 

I've included your suggestion in my statement as shown below --

=======================

Moreso the "greater scrutiny" reffered to by the defendant is almost certainly applied automatically through their computerised systems as confirmed by the defendant in the information provided under S.A.R - (Subject Access Request) that monthly arrears statement are generated automatically.

==========================

Is this alright?

[alanfromderby]

That looks fine.

 

Just to clarify how the B&W system seems to operate. Their computer system monitors account activity, and flags up where accounts are in arrears. This will generate a letter - presumably automatically.

 

After three months, the system would make an automated decision to highlight the account for transfer to the collections department. It then flags up the process that is to be followed. Only if that process is to be overridden would I expect that any real intervention would take place - and this is only likely in exceptional circumstances.

 

The banks have us believe that someone manually goes into the computer to check that a payment has been made, and then discusses the case with a manager, before making a decision. This is plainly not true - in fact it is the computer system that notifies the member of staff of the missed payment, and as to what letter should be sent, or action to be taken.

 

I would suggest that the only time that a higher level of intervention would be when an account reaches litigation, and even then all the letters and forms will be pre-formatted, and would take a matter of a few minutes to issue at the very most.

[JonCris]

Correct Alan. Many if not all of the systems used once started act independently of human intervention unless there is a response from the debtor.

[zootscoot]

Any news on this one Donelly?

[zootscoot]

Finished

[Sue_de_Nimm]

So?????? Did they go to court, or just cough up before it got there?

[zootscoot]

Well, I assume if she had gone to court she could tell us all about it because it would be public information.

 

Think about it

[paddym]

if it didnt go to court and nothing has been said then maybe the confidentiality clause comes in to play !!!!!!!!!!

[Sue_de_Nimm]

Oh, Im assuming its a 'lets settle before we REALLY lose out' one, but Id love to know how far it got, & what happened. All the juicy details & all that!

[tamadus]

Noooooooo. I refuse to allow this thread to end in a confidentiallity clause.

 

I hope they made it worthwhile keeping quiet

[paddym]

As far as my son has informed a while ago confidentiality clause are unenforceable and you can insist on them being removed from any documents they want you to sign however if you do sign them then its up to you morally it would be wrong to break it ( he a final year law student by the way )

[e28bigalbexley]

Still another happy ending:D I hope

[zootscoot]

It depends on whether the document signed was a Tomlin order (fancy name for a court order to seal a settlement) or a deed.

 

If it was simply a letter signed it would have no binding force whatsoever unless they paid for your silence.

[dolly]

To be honest, I'd sign a confidentiality clause written in my own blood if it meant I got my money back!!

 

:lol:

[kippy2]

It depends on whether the document signed was a Tomlin order (fancy name for a court order to seal a settlement) or a deed.

 

.

 

 

oh sugar i crossed out the confidentiality clause on my tomlin order against GE money. what happens now??? :o will they still pay me or what? :-?

[JonCris]

Wait & see & if they accepted without question then it's their problem. Also if they want a service such as confidentiality then your entitled to an additional payment in consideration

[Sue_de_Nimm]

To be honest, I'd sign a confidentiality clause written in my own blood if it meant I got my money back!!

 

:lol:

So would I. But for the greater good of everyone here, knowing what it feels like to be in this situation Id find a way for people to 'find out' what happened. Confidentially, of course ;) Play fair? I dont think so!

[kippy2]

Wait & see & if they accepted without question then it's their problem. Also if they want a service such as confidentiality then your entitled to an additional payment in consideration

 

 

thanks had a court date through today anyway :D and they have to supply a court bundle aswell so somehow me thinks they will pay up :o

[Bona]

Every time we go to court with GMAC they play the system by arriving late but telephoning the Judge First so they delay the hearing, serve papers on us 3 mins before the hearing .We are fighting a costs case against them in the High Court they would not agree our costs on an application for a costs hearing so although we agreed the order we would have been out of pocket so we went to court for our costs and they turned up late and gave us a bill for over 1000 pounds and now we have to do it all again because they wont give us information so we will have to make another application it seems to me that they are trying to were us down