jonni2bad v Halifax - Got the money but no default removal

[Tinkerbelle]

Someone call him!!

[Black Rat]

Call him what?

[jonni2bad]

Thank you everyone for your good wishes in the past few days.

 

I'm very disappointed to tell you that my application for the removal of the default notice was refused.

 

The crux of the hearing was the fact that the Judge, from the very outset, was not prepared to even discuss the idea that charges were unlawful or even relevant to my case for the removal of the default notice in today's hearing.

 

I will be applying for a transcript of the recording made - not least because when I was supposed to be making notes, I probably sat open mouthed for several minutes in absolute shock.

 

The only course of argument that I was allowed to make (which I clearly couldn't) was that the information passed to the CRAs was not a record of the files held by the Halifax (without being able to challenge the lawfulness of the information they had, by the way).

 

After 30 seconds of stepping into the court room, it was very obvious that I had lost. Everything else that happened after that was irrespective and, I presume, only continued to allow me to feel as though I had been given some opportunity to argue.

 

Whether or not I seek leave to appeal, on what grounds and what the consequences of doing so are, will all be discussed with relevant parties and I shall report back to you in due course about that.

 

To make sure that users are aware of what this means, especially if you are quite new to the site etc, this hearing today was not in relation to the actual refunding of charges - the money claimed from the Halifax had already be paid in full - this was simply a second part of my claim which asked for the default notice to be removed because (I was going to argue) the level of charges imposed outweighed my negative balance at the time (to the tune of £1200).

 

Unfortunately, the Judge was not prepared to enter into any discussion about that - I'm at a loss as to explain why.

 

What I would now wish to make clear is that - if anyone else has received a default notice and you wish to have it removed because of the same argument as above, then you MUST let the whole case reach court, so that the charges themselves have to be discussed along with their relevance to the default notice.

 

We live and learn - and fight on another day.

 

Still, no harm done. I'm in exactly the same position that I was yesterday (no references to the Kama Sutra please) and the court costs were all paid for by the Halifax when they settled the monetary part of the claim.

[Aaronsdad]

Good on yer mate!

Keep fighting.

I look forward to reading your next instalments

A D

[sezj127]

Oh J2b...im so sorry that you didnt win. Ive just read your post with a fish mouth. After everything you prepared, the fighting you have done, the research and my god the court bundle!!!!! How the judge could just decide straight away that you had lost without (assumingly) going through your bundle efficiantly??!! I have been keeping a good eye on your thread and couldnt wait to read this post, but what a dissapointment. Again i am so sorry for you but, as you have said you still live to fight another day. Congratulations on the wins that you have acheived though. Sarah x

[bandonbhoy]

Jonni our thanks for your endeavours. It is as you say tied in with charges, and hence settling them prior to this case somewhat diluted your leverage. I have enjoyed reading your progress and you are one of the inspired members in this group. It is still heartening

[maybelline]

thnaks for letting us know, sorry it did not go the way we were all hoping but not for lack of effort on your part, well done.

[Yasmin]

Know how you must've felt Jonni. You can just sense it from the start, when it's loaded against you! ( first case with egg, luckily adjourned) I have just had an offer from Barclays re Woolwich, case 15th Nov. no mention of the default so I have replied making it a stipulation to remove it, as the debit balance I was defaulted on comprised solely of unlawful charges...

Best of Luck,Jonni will be keeping track of it

[pugsley]

I really think this was a bad decision and needs investigating. I intend to go after capital one for the default removal and I'm in the same position as you, if the judge isn't doing his job properly something should be done about it.

[aardvark the lecturer]

Still, no harm done. I'm in exactly the same position that I was yesterday (no references to the Kama Sutra please) and the court costs were all paid for by the Halifax when they settled the monetary part of the claim.

 

Jonni, your a star.

 

No toys out of the pram for this man, just a practical determination.

 

Without people such as youself, dave, Bankfodder and all the others who do the front-running and inevitably come across the pitfalls and mistakes first, we'd still be floundering about wondering what was possible in the first place.

 

For that I thank you.

 

 

Theres an interesting angle on default removal thats not linked to bank charges here,

 

the main thrust of which is this,

 

Quote:

10. - (1) Subject to subsection (2), an individual is entitled at any time by notice in writing to a data controller to require the data controller at the end of such period as is reasonable in the circumstances to cease, or not to begin, processing, or processing for a specified purpose or in a specified manner, any personal data in respect of which he is the data subject, on the ground that, for specified reasons-

• (a) the processing of those data or their processing for that purpose or in that manner is causing or is likely to cause substantial damage or substantial distress to him or to another, and

• (b) that damage or distress is or would be unwarranted.

(2) Subsection (1) does not apply-

• (a) in a case where any of the conditions in paragraphs 1 to 4 of Schedule 2 is met, or

• (b) in such other cases as may be prescribed by the Secretary of State by order.

(3) The data controller must within twenty-one days of receiving a notice under subsection (1) ("the data subject notice") give the individual who gave it a written notice-

• (a) stating that he has complied or intends to comply with the data subject notice, or

• (b) stating his reasons for regarding the data subject notice as to any extent unjustified and the extent (if any) to which he has complied or intends to comply with it.

(4) If a court is satisfied, on the application of any person who has given a notice under subsection (1) which appears to the court to be justified (or to be justified to any extent), that the data controller in question has failed to comply with the notice, the court may order him to take such steps for complying with the notice (or for complying with it to that extent) as the court thinks fit.

(5) The failure by a data subject to exercise the right conferred by subsection (1) or section 11(1) does not affect any other right conferred on him by this Part.

 

 

Thanks to Dayglo's thread and those helping with his defense.

 

Hope this helps.

[MARTIN3030]

Yep a real downer after all the prep.

I have left 2 of my cases on hold as we dont seem to have had much to go on as to which was the best way to go with this.

Taking the money back from them and then going for default removal always seemed to me to be the way to go but they have fought this and unlike caving on the refunds this was always about them getting a result at any cost.

We have discussed at length why it appears be so important for them to leave the defaults in place and there is divided opinions but no clear answers.They will naturally be jubilant at the findings and the costs will not detere them.They will tho undoubtably know that there will be a change of direction John as you say,to approach this collectively with the charges in future.

It will be very interesting to see what becomes of those cases.

A bad day at the office matey .......but for sheer endurance patience and determination..........you still deserve the black Russians ......I have the real stuff here,but unfortunately have run out of Tia Maria !!

[lucy.c40]

hi jonny i too have been following your thread dont feel like you have lost its just the beginning for many of us here ,sometimes i feel like i have lost but being on here i know im a winner god bless and please still have your black russians u deserve them for all oursakes xx

[andybhoy]

Glad to hear you got your charges back Jonni, thats at least part of the battle. Can i ask though, did you send away for a copy of your credit agreement (sect. 77-79 of CCA) and did they have it?

 

If they didnt have a credit agreement with you, would that have made a difference to this case? Perhaps the fact that no agreement exsisted, so there was no agreement by you for them to pass you details to a third party (the CRA's)? Just wondering...

[jonni2bad]

.. Can i ask though, did you send away for a copy of your credit agreement (sect. 77-79 of CCA) and did they have it?

 

If they didnt have a credit agreement with you, would that have made a difference to this case? ....

 

No, I didn't send for this. I was quite sure that we only had to fight them on the real issues and not by catching them out with a failure to provide certain bit of paper etc.

 

I was quite certain too that I did have the account and signed T&Cs etc.

 

Todays hearing just means we have to alter the game plan, but I am now convinced that someone will give us great news on this front in the near future.

[ampersand]

Jonni our thanks for your endeavours. It is as you say tied in with charges, and hence settling them prior to this case somewhat diluted your leverage. I have enjoyed reading your progress and you are one of the inspired members in this group. It is still heartening

Hello jonni2bad and also bandonbhoy, whose excellent post expresses all I wished to say to you.

(My prelim. Request for Repayment from A&L was done today)

Surely the Judge's dismissive stance gives grounds for a further Hearing.#

Might is NOT right and the Banks are learning this.

I fear parallels with today's Court result concerning the BNP mouth may be drawn.

[caro]

According to the law of averages there are bound to be occasions when cases don't go to plan, but we are doing fantastically well overall, in no small part to you Jonni. When you have a bit of time to reflect I am sure you will see other ways of moving forward, whether with this case or others, and if we can learn something from this it will be worthwhile. I know that won't help you now, but you had the combined good wishes of CAG behind you, while the banks struggle to find some way of beating us.

 

The skirmish was lost, the war rages on. Don't let them grind you down.

[jamesbond]

jonni i am so pi**ed about this you cannot believe.. but please please dont give up on it..i am all for setting up a war chest for you on this with a small contribution for legals..this is very very wrong and it is quite simply an abuse of your rights,the data supplied must be accurate....they can hit us with unlawful charges and then screw your credit files for 6 years....wheres the justice?

[nigel1804]

Well how unfortunate for you j2b,you may have lost that battle (for the moment) but the war continues,and from the help you have given everyone, the war is in our favour,The judge seemed to not want to discuss relevent evidence.just like past records can't be evidant to the jury,so the judge has missed important,relevent information,THIS TIME!.Next time, different judge,different court and lessons learnt from your hard work and dedication will bring more justice for everyone,forward and onwards everyone.Thanks for your help j2b from me and I'm sure I speak for everyone on this site.

[Spuddy]

sounds as if the judge had already made up his mind prior to the hearing. sorry to hear...

[maybelline]

Yep a real downer after all the prep.

I have left 2 of my cases on hold as we dont seem to have had much to go on as to which was the best way to go with this.

Taking the money back from them and then going for default removal always seemed to me to be the way to go but they have fought this and unlike caving on the refunds this was always about them getting a result at any cost.

We have discussed at length why it appears be so important for them to leave the defaults in place and there is divided opinions but no clear answers.They will naturally be jubilant at the findings and the costs will not detere them.They will tho undoubtably know that there will be a change of direction John as you say,to approach this collectively with the charges in future.

It will be very interesting to see what becomes of those cases.

A bad day at the office matey .......but for sheer endurance patience and determination..........you still deserve the black Russians ......I have the real stuff here,but unfortunately have run out of Tia Maria !!

 

am I right in thinking that the financial institutions do not have to go to court to issue defaults? this gives them immense power as they would say no doubt, as a deterrant. how is it that a ccj can be marked settled but a default is set in stone and criteria for the issue of defaults seems to vary. it is a travesty that this cannot be challenged in court, surely if defaults are issued properly and fairly the institutions should have nothing to fear about having them challenged.

[aardvark the lecturer]

You are correct maybelline, court involvement is not necessary to apply a default to a credit file. But defaults can, and are marked settled as well, it's just that having a default (settled or not) has a huge impact on a persons credit worthiness in a lenders opinion.

 

These can, and have, been challenged in court.

 

The problem is that the information commissioners office are adamant in their position that the handling of defaults is correct, and as they believe is allowed under the Data Protection Act!

 

There are some interesting angles on this being tried though, it depends on the situation you are in, and the status of the default, which way to tackle it.

 

Unlike the tried and tested bank charges argument, this is very much a new development and a far more complicated case to build!

[maybelline]

thanks Aardvark, do lenders assume many payments are missed or that it is the last resort before being issued - I always thought of it as something not to be taken lightly because of the eronneous effects which are effectively a huge penalty, especially when issued in haste, without realistic consideration of the punitive effect it actually has. it seems like a kind of abuse of power, using a sledgehammer to crack a peanut in some cases. the word I am looking for is - disproportionate!

 

I see the section about unwarranted distress, this seems to be a way to go, also I have read another thread regarding contracts that have ended and therefore the data no longer to be processed?

[TideTurner]

Has anybody ever had any issues with respect to the legal retention of data by the likes of Equifax or other credit agencies. As I understand, the original database was set up by the FOS (Financial Ombudsman Service) who later wiped their hands clean of it. By then, the damage was done and the banks took up the case - the FOS are appointed by the government and cannot be seen to publish / provide personal information to all and sundry, particularly not for profit. I will be looking to question Equifax / Esperian etc. on their rights to obtain / retain / provide my personal information to any third party without my express consent. Has anybody else challenged them?

[gizmo111]

Has anybody ever had any issues with respect to the legal retention of data by the likes of Equifax or other credit agencies. As I understand, the original database was set up by the FOS (Financial Ombudsman Service) who later wiped their hands clean of it. By then, the damage was done and the banks took up the case - the FOS are appointed by the government and cannot be seen to publish / provide personal information to all and sundry, particularly not for profit. I will be looking to question Equifax / Esperian etc. on their rights to obtain / retain / provide my personal information to any third party without my express consent. Has anybody else challenged them?

 

Yes check out SurlyBonds post in the legalities/dp forums

[maybelline]

i think there is a thread in legalities un1boy v Equifax - Default removal, around this subject area.