car2403 -v- GE Capital Bank (Default removal)

[car2403]

Judgment has been set aside as the Court received a faxed Defence before the Judgment was entered.

 

The Defence is;

 

1. The Defendant denies that the Claimant is entitled to the relief claimed or any relief against the Defendant in respect of the matters stated by the Claimant in his particulars of claim.

 

[standard opening of defence]

 

2. The Defendant was at all material times engaged in the business of providing credit to consumers, in respect of which it is regulated by the Office of Fair Trading.

 

[Agreed]

 

3. It is admitted that on 29 January 2005, the Claimant entered into a credit agreement with the Defendant for the provision to the Claimant by the Defendant of credit for the purchases of goods in B & Q Stores (“the Agreement”) (account number: ****** —“the Account”).

 

[i deny I entered in to a Credit Agreement, but I agree did enter in to an unenforceable contract]

 

4. It is admitted that no date has been inserted in the “Date of Agreement” box; however it is denied that such omission tenders the Agreement unenforceable

 

[According to the regulations/OFT guidance it is]

 

5. Further, the Defendant denies that the Claimant has suffered any prejudice as a result of the omission.

 

[unlawful Default is prejudice, is it not?]

 

6. In the alternative, if, which is denied, the Agreement is unenforceable then this does not alter the fact that the Agreement remains a valid contract The Claimant’s obligations under the Agreement remain binding.

 

[i don't get this? Unenforceable agreement = unenforceable debt. This implies something different, which is wrong]

 

7 It is denied that the Defendant has passed any inaccurate information to any Credit Reference Agencies. All data passed to the Credit Agencies during the currency of the Credit Agreement accurately reflected the state of the Claimant’s account and how the Claimant operated it and was in accordance with the Information Commissioner’s guidance on the fair processing of personal data with regard to defaults.

 

[A matter of opinion on which the Court will decide. I'm sure the ICO's guidance doesn't mention Defaulting customers without a legal right to be able to under the CCA due to an unenforceable agreement]

 

8. The Claimant’s claims that any default notice was invalid on the basis that such a notice would comprise, partly, of the default charges debited to the Account which, the Claimant avers, are illegal. The Defendant denies that the charges are a disproportionate penalty, unenforceable, irrecoverable at common law or contrary to the Unfair Terms in Consumer Contracts Regulations 1999 or otherwise. The charges are a genuine pre-estimate of the cost to the Defendant of dealing with the claimant’s default and are reasonable. Any default notice or other information provided to any Credit Reference Agencies was, therefore, accurate and valid and, accordingly, the Claimant’s claim for damages in denied.

 

[Prove it!]

 

9 In the premises, it is denied that the Claimant is entitled to relief whether as claimed or at all.

 

[standard close of defence]

 

I'm not worried about this.

 

AQ due back by 25 January, so I'll be using the one I composed for my HFC claim (adapted to suit) which is here;

 

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/110146-car2403-hfc-bank-default-7.html#post1274737 (post #127 if the direct link doesn't work)

[car2403]

Well, well, well... Despite me reminding GE Money that they would have had 40 days to comply with my Data Protection Act S.A.R - (Subject Access Request) on 01/01/08... Guess what... They still haven't complied! This is very concerning, as it suggests they don't have any data on me. ("Hmmm", I'm thinking to myself... "how do they intend to Defend my claim in that case"...) I've sent off an LBA for DPA SAR enforcement, (already done this with O2, so I'm an old hand now!) along with a copy of a complaint I've sent to the Information Commissioners Office today - for all that that will be worth...

 

Still no reply from that CPR Part 18 request for more information neither - just another nail in their coffin, IMO. I won't bother writing the Court about this as they don't have to comply as it's likely to be allocated to the small claims track, where CPR Part 18 doesn't need to be followed. I will be asking for Special Directions when I get to the AQ stage, though. (All this is already prepared)

 

I'm also chasing the Court, as I believe I should have had Judgment by Default by now, as the claim was issued some time ago and I sent in a request on 21/12/07. I'll ring them for an update tomorrow.

 

The plot thickens...

 

I sent a N1 in to my local Court, which was issued on 11 January, for DPA SAR enforcement and damages (£95) due to the delay in replying - as soon as GE have received the claim form, they've replied with the info I asked for in the SAR. Strangely, this letter was dated 8 January - I didn't receive it until last week!

 

They have until Monday to acknowledge service or enter a defence on the SAR claim - I have a Judgment by Default request sitting waiting to go to the Court in Monday's post. I will either get an AOS, or a defence saying they have already complied with the request - either way I want the damages outlined in the claim.

 

The AQ for the Default removal claim should receive some attention from the Court this week, with allocation to the small claims track and a hearing date being set for mid- to late March, knowing what the workload of this Court is. (I've issued lots of claims there recently! )

[car2403]

I sent a N1 in to my local Court, which was issued on 11 January, for Data Protection Act S.A.R - (Subject Access Request) enforcement and damages (£95) due to the delay in replying - as soon as GE have received the claim form, they've replied with the info I asked for in the SAR. Strangely, this letter was dated 8 January - I didn't receive it until last week!

 

They have until Monday to acknowledge service or enter a defence on the SAR claim - I have a Judgment by Default request sitting waiting to go to the Court in Monday's post. I will either get an AOS, or a defence saying they have already complied with the request - either way I want the damages outlined in the claim.

 

AOS received with an intention to defend in full - I, for one, can't wait to hear this one...

[benmills]

Due you think it's a bluff? Looking forward to their defence. Thanks for all your hard work on default removal. Have just used your Barclays argument against A and L. They even wrote telling me my £1000 overdraft offer wasn't a credit agreement. They'll be telling me they're not a bank next. No lending going on here. The court was helpful too.

[car2403]

Due you think it's a bluff? Looking forward to their defence. Thanks for all your hard work on default removal. Have just used your Barclays argument against A and L. They even wrote telling me my £1000 overdraft offer wasn't a credit agreement. They'll be telling me they're not a bank next. No lending going on here. The court was helpful too.

 

Hi benmills,

 

Remember this AOS is relating to the DPA SAR enforcement claim and NOT to my ongoing battle to have the Default removed... which is why I'm interested to see how they can defend the indefensible on this one!

 

STILL waiting to hear about allocation of the Default Removal claim, which should be with me shortly.

 

Glad to hear you've had success with my POC - I'm in Court with Barclays NEXT Friday, if anyone else is interested in dipping in; (the end of a 6 month saga...)

 

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

[car2403]

Ok, now I'm angry with HMCS as well;

 

Notice of Case Management Conference

 

TAKE NOTICE that the Case Managment Conference will take place on 10 March 2008 at 11:40 at XXXX County Court.

 

When you should attend

 

30 minutes has been allowed for the Case Management Conference

 

Please Note: This case may be releasted to another Judge, possibly at another Court

 

Special Directions may be required rather than standard small claims.

 

Court considers stay as Bank Charges case may be relevant.

 

Length of hearing and track to coincide

 

Now, I like this; "Special Directions may be required rather than standard small claims" - seems this Court may have "grown some b*lls"!

 

I don't like this; "Court considers stay as Bank Charges case may be relevant" - er, "excuse me Sir, how can the test case apply to a Store/Credit Card account?"! I wonder if GE have asked for this, as I haven't seen their AQ submissions... Surely this won't be stayed?

[car2403]

Remember this AOS is relating to the Data Protection Act S.A.R - (Subject Access Request) enforcement claim and NOT to my ongoing battle to have the Default removed... which is why I'm interested to see how they can defend the indefensible on this one!

 

And here's the Defence;

 

1. It is admitted that the Claimant has an account with the Defendant (trading as GE Money) for the provision to the Claimant by the Defendant of credit for the purchases of goods in B & Q Stores (“the Agreement”) (account number: ****** — “the Account”).

 

2 It is admitted that the Defendant received a Subject Access Request from the Claimant dated 19 November 2007.

 

3. It is further admitted that the Defendant did not reply to the Claimant’s Subject Access Request within the prescribed 40 day period.

 

4. The Defendant has now, under cover of a letter dated 8 January 2008, complied with the Claimant’s Subject Access Request.

 

5. The Particulars of Claim state that the Claimant has suffered damage as a result of the Defendant’s failure to comply with the Claimant’s Subject Access Request. It is claimed that the damage caused is: “additional costs incurred due to additional correspondence and time spent preparing documents and seeking legal advice”. It is not admitted that the Claimant has suffered damage and the Claimant is put to proof in this respect. The Defendant further asserts that such costs are not recoverable under the Small Claims track as set out in CPR 27.14.

 

6. In the premises, it is denied that the Defendant is liable to pay to the Claimant

£120, whether as alleged or at all.

Surely it's up to the Court to decide if the damages should be allowed, hence the "at the discretion of the Court" part of the Data Protection Act S.A.R - (Subject Access Request) enforcement POC...

 

How can they admit they didn't reply in the prescribed period, then deny that I've suffered damage - it's one and the same thing!

 

AQ to be returned by 3 March.

 

Should I apply for Summary Judgment?

[car2403]

Completing the AQ for the D.P.A. S.A.R. enforcement claim, or, rather, the claim for damages due to their late response to that request, so here's the wording from Section G - Other Information; (the rest of the AQ completed as a standard small claim)

 

It is respectfully submitted that this case is a simple, straightforward action for damages from the Defendant due to its own failure to comply with a s.7 Data Protection Act 1998 Subject Access Request sent by the Claimant.

 

In its own defence, the Defendant has admitted that it has failed to supply such information required in that request and under that Act, but the Defendant disputes that the Claimant can claim such damages due to the likelihood that this case will be allocated to the small claims track. The Claimant acknowledges these arguments as being sound, however, the Defendant has failed to consider the application of s.13 Data Protection Act 1998, in that the Court does indeed have powers to make Judgment for the Claimant in these proceedings by way of compensation for the Defendants failure to comply with the Acts requirements;

 

13 Compensation for failure to comply with certain requirements

 

13(1) An individual who suffers damage by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that damage.

 

13(3) In proceedings brought against a person by virtue of this section it is a defence to prove that he had taken such care as in all the circumstances was reasonably required to comply with the requirement concerned.

 

Accordingly, it is requested that this claim be allocated to the small claims track to be dealt with efficiently and effectively by all parties, minimising further costs.

 

Couldn't have put it more succinctly?

 

I'm actually getting a little tied of GE here, so I've decided to throw them a lifeline at this late stage. I can't say more now, for obvious reasons, and suffice it to say I know they want to hear what I have to say, but I'm hoping this will all be over, with a successful outcome for me. Check the title of the thread, to see what that would be. If they don't do what I ask, it will be quite expensive for them to continue, IMHO. If they don't, I'll let you know what it was, as it won't matter then anyway.

[car2403]

Received from GE's solicitors;

 

We refer to the above matter and confirm that we have been retained by GE Money to investigate and advise upon the merits of your claim.

 

The purpose of this letter is to set out our client’s position in respect of default charges which may have been debited to your account as consequence of you missing payments which should have been made in accordance with the terms and conditions of your agreement with our client.

 

Our client does not accept that the default charges are either unfair or illegal in law, be it statutory or common law. However, as a matter of commercial expediency and as a gesture of goodwill, our client is prepared to reflind £60. This is the total amount of charges which have been debited to your account. This amount will be credited to your outstanding balance.

 

Furthermore, in the event that interest has accrued on the default charges, our client will calculate such interest and will make an appropriate credit to your balance. Accordingly, the balance of your account with our client can no longer be disputed.

 

We trust that the above finds favour with you. As you will appreciate, this narrows the issues existing between the parties.

 

Please do give the writer a call should you wish to discuss this matter.

 

Yours faithfully

 

I make the default charges £75 plus £12.53 in interest (8%) totalling £87.53.

 

IMHO, this doesn't make a difference, as the Default Notice still contained this amount so the balance showing on it is still wrong.

 

Case management conference on the Default Removal issues on Monday morning - discuss directions and possibility of stay for bank charges test case, which can't happen as this isn't a bank account or overdraft agreement

 

"Other" interesting negotiations going on in the background too...

[Goldlady]

GE's solicitors have left a message on my answerphone today saying they want to talk about a settlement in response to my claim which was only issued last week!! Our claim is for £2K so it will be interesting to see what they have to say. I can't believe that they would give in so easily after the mammoth essays I had in response to my LBA.

[car2403]

Ok, down to the nitty-gritty...

 

I was in Court today for the Directions Hearing on this claim. Had to wait 3 hours to see the Judge because the first hearing overran and I was seemingly last on the list. (I say that, because most of those that got "seen" to before me arrived after me - lets call it my punishment for the day)

 

Anyhoo, here's the lowdown.

 

GE sent some (not bad looking!) Barrister to scare me off. Didn't work. He said he was asking the Judge to strike out my claim as it had no basis or prospect of success - my response "go ahead, punk, make my day!". (I said it in "Geordie", so it lost some of it's effect) This seemed to throw him, so he then said he was going to object to my draft order for directions - my response, (no, it wasn't "go ahead punk!"...) was that I was prepared to withdraw my draft directions if HFC would agree to allocation to small claims track and make a decent attempt at settlement prior to the final hearing. What we defined as decent was that they would correspond with me, rather than ignore me - which is what has happened to date. He said they would go for arbitration with a court appointed mediator.

 

So, that meeting with him was a 0-0 draw, in my eyes.

 

In to see the Judge. (Who was in a hurry, as he was starving and chewing his own arm off at this point!)

 

The Judge asked this Barrister bloke to outline what he thought my claim was, which he did very well. He asked me some questions, then asked GE why they hadn't attempted a settlement yet. A few noises like "hmmm..." and "argh..." later, and the bloke said he wasn't instructed to offer a settlement and had only received the case a few days ago. "Tut, tut..." said the Judge. (Hey, I'm getting all "Famous Five" with this now! )

 

I digress...

 

The upshot of today, all joking aside, is that;

• The claim is stayed for 1 month to allow GE to attempt a settlement with me - I've told them nothing less than Default removal will suffice, so don't bother otherwise.
  
• After that, standard small claims directions apply and the case will be relisted as usual - I have to write to the Court telling them if we've settled or not beforehand.
  
• I have permission to amend my POC, if I feel necessary. (Laid it on thick about GE's late reply to my S.A.R., just in case I missed something I can use)

I may have missed something here, as the Judge was talking very fast while reading the Court Order out - if I have, I'll post it up when I get it in the post.

 

The last thing that GE asked for was for costs for attending. They were told they should know better than to ask, then were refused.

 

Still, onwards and upwards...

 

 

(Now, before you shoot the messenger - those of you reading my "other antics" on other threads will see I've done a copy/paste job with my directions hearing with HFC today. That's because I have! Both were heard at the same time, by the same Judge with the same parties - and I can't type this top-class material twice! Same claim, slightly different outcome, but happy about both at the end of the day.)

[phoebesmum]

I too have had dealings with Salans, (P Beswick)

 

they agreed a settlement with me, no default just charges, I let them off with a bit agreed £371 including £30 court costs. Signed agreement.

 

This was on 15th January 2008, told they would send off sealed to courts, can't get any answer from P Beswick on e-mail just chooses to ignore. Telephoned courts who said paper work from Salans not in order, so after initial 28 days, last Friday, now another 28 days until they respond and judge signs the order as agreed.

 

I now don't want this, they have taken a really unreasonable legth of time with all this, well over 6 months since initial contact.

 

Any advise, as not sure if I am getting paid, or if I am, when it will be.

 

cheers

 

P

[car2403]

Completing the AQ for the D.P.A. S.A.R. enforcement claim, or, rather, the claim for damages due to their late response to that request, so here's the wording from Section G - Other Information; (the rest of the AQ completed as a standard small claim)

 

 

 

Couldn't have put it more succinctly?

 

I'm actually getting a little tied of GE here, so I've decided to throw them a lifeline at this late stage. I can't say more now, for obvious reasons, and suffice it to say I know they want to hear what I have to say, but I'm hoping this will all be over, with a successful outcome for me. Check the title of the thread, to see what that would be. If they don't do what I ask, it will be quite expensive for them to continue, IMHO. If they don't, I'll let you know what it was, as it won't matter then anyway.

 

Hearing date set for the DPA SAR late response damages - case considered appropriate to refer to mediation, or hearing date set for 18 April. (20 mins) Standard small claims track directions, file/serve documents at least 14 days before the hearing, etc, etc...

 

Surely they aren't going to take this all the way for £90+£30 issue fee+£25 hearing fee, are they?

[car2403]

Hearing date set for the Data Protection Act S.A.R - (Subject Access Request) late response damages - case considered appropriate to refer to mediation, or hearing date set for 18 April. (20 mins) Standard small claims track directions, file/serve documents at least 14 days before the hearing, etc, etc...

 

Surely they aren't going to take this all the way for £90+£30 issue fee+£25 hearing fee, are they?

 

Here's the skeleton argument I'll be submitting for the Data Protection Act S.A.R - (Subject Access Request) action;

 

 

Claim Number: ****

 

 

 

In the **** County Court

 

 

 

 

Between:

 

car2403

 

 

(Claimant)

 

 

 

and

 

 

 

 

 

GE Capital Bank Limited

 

 

(Defendant)

 

 

 

 

 

_______________________

 

 

SKELETON ARGUMENTS

OF THE CLAIMANT

_______________________

 

 

 

 

 

 

1. I, car2403, the Claimant in this case, submit this outline of my skeleton arguments from my own knowledge or experience, excepting for where reference is made to specific documentation contained within the exhibits attached where this statement is made in support of said documentation.

 

 

2. This statement is submitted by the Claimant, a litigant in person, and outlines the Claimants case against the Defendant in full.

 

 

3. It is intended this statement will expedite the upcoming hearing and elucidate and clarify the issues that appear to the Claimant to be hampering the speedy and equitable resolution of this case.

 

 

4. The Claimant sent an s.7 Data Protection Act 1998 Subject Access Request to the Claimant dated 19 November 2007. This wassent via Royal Mail First Class Post, with proof of receipt dated 23 November 2007. (“Exhibit 1”, attached)

 

 

5. The Claimant had 40 days from the date of receipt of the request to provide the data requested. (s.7(10) Data Protection Act 1998)

 

 

6. The Defendant failed to respond to the Claimants request.

 

 

7. The Claimant wrote to the Defendant outlining this failure, in a letter dated 15 December 2007, (“Exhibit 2”, attached) in which he reminded the Defendant of its obligation to respond to the request within 40 days – the 40th day being 2 January 2008.

 

 

8. The Defendant failed to reply to the Claimants request within the prescribed period.

 

 

9. The Claimant wrote to the Defendant outlining this failure, in a letter dated 3 January 2008, (“Exhibit 3”, attached) giving the Defendant 7 days to provide the data requested and outlined his intention to take legal action to seek enforcement of that request should the data not be supplied within that time.

 

 

10. The Defendant failed to reply to the Claimants correspondence.

 

 

11. The Defendant subsequently complied with the Claimants request in a response dated 8 January 2008, received by the Claimant on 15 January 2008.

 

 

12. The Claimant has suffered damage, as a result of the Defendants failure to comply with its legal obligation of responding within the prescribed period, in the form of additional costs incurred in correspondence and time preparing legal argument. (“Exhibit 4”, attached)

 

 

13. The Claimant considers s.13(1) DPA 1998 applicable in the current case, in that the Court has power to award compensation for the Defendants failure to comply with the Acts requirements to the Claimant;

 

“13 Compensation for failure to comply with certain requirements;

13(1) An individual who suffers damage by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that damage…”

 

14. The Defendant, in its defence statement at paragraph 3, admits that did not reply to the Claimants request within the 40 day period prescribed by s.7(10) DPA 1998. This is despite the Claimants attempt to highlight the fact that the Defendant was about to – and indeed did – fail to reply to that request as prescribed.

 

 

15. The Claimant will argue that the Defendant has breached its obligations, as it has admitted in its own defence, under the Act and that it didn’t take such care as reasonably required to comply with the requirement to reply to the Claimants request within the 40 day prescribed period. The Defendant also did not reply to the Claimants correspondence, advising of a reason for a failure to respond, whether within the prescribed period or not.

 

 

16. In view of the arguments in this document, the Claimant respectfully seeks that the Court orders the Defendant to pay the Claimant £126.08.

 

I, car2403, the Claimant in this case, believe that the facts stated in this document are true.

 

Signed:

 

 

 

 

 

 

car2403

 

(Claimant)

 

Dated this, the 21st day of March, in the year two thousand and eight.

 

Here's the outline of costs;

 

[car2403]

The upshot of today, all joking aside, is that;

• The claim is stayed for 1 month to allow GE to attempt a settlement with me - I've told them nothing less than Default removal will suffice, so don't bother otherwise.
  
• After that, standard small claims directions apply and the case will be relisted as usual - I have to write to the Court telling them if we've settled or not beforehand.
  
• I have permission to amend my POC, if I feel necessary. (Laid it on thick about GE's late reply to my S.A.R., just in case I missed something I can use)

 

I've heard nothing from GE regarding any settlement of the default claim, so this is off to them;

 

I refer to the above claim and your failure to reply to my offer of settlement dated 10 March 2008, a copy of which is attached.

The representative attending the recent Court hearing requested a stay of 1 month to allow these negotiations to continue – to date, I have heard nothing from you in an attempt to do so.

How would you like to proceed?

 

Yours faithfully

[car2403]

GE Money are really, really beginning to annoy me now! I've received a Default Notice for this agreement, (why, when they've already Defaulted me?) so here is my "extremely toned down" response to them;

 

Dear Sir/Madam,

I refer to a letter I have received from you, headed “DEFAULT NOTICE Served under Section 87(1) of the Consumer Credit Act 1974” and dated 26 March 2008. I also refer to correspondence sent to you in reply to a letter I received from Lewis Debt Recovery, on your instructions. (Copies attached, for your information)

Firstly, this account is still in dispute – as you are well aware, due to the upcoming legal action that is currently pending against you. I won’t, therefore, repeat this dispute, as you already have this information on your files.

For extremely good legal reasons, the issuing of this Default Notice is further contrary to the rules and regulations surrounding Debt Recovery, as outlined by the Office of Fair Trading and referred to my the correspondence attached. As you seem insistent on pursuing this balance, despite it being legally unenforceable for the reasons outlined in my submissions to the Court, and COMPLETELY IGNORING my formal complaints to your company about the litigation and collection style that you are currently using, I feel I have no choice but to escalate these issues to the appropriate authorities.

Please take note that I intend to apply to the Court for an order delaying your termination of the alleged agreement, under the Default Notice issued, until such time that a final determination has been made in the outstanding Court claim. As you are well aware, the enforceability of a Consumer Credit Act Agreement is a very important factor in deciding whether you can Default and/or terminate that agreement within the prescribed methods outlined within Part VII, s.87/s.88 of the Consumer Credit Act 1974. I am also sure that the Court will frown on your continued collection of this account, which I believe is tantamount to harassment, as you have previously indicated an intention of negotiating a settlement of my claim against you – in fact, the proceedings are currently “stayed” pending this negotiation. I feel your actions here are very distasteful, down right dismissive and potentially damaging to your defence to my claim – information that I am fully prepared to share with the Court, as outlined.

Further, your actions in this case are contrary to the requirement of good faith and in breach of OFT Debt Collection Guidelines, as outlined in my letter to Lewis Debt Recovery, attached – this leads me to believe that you are blatantly not fit to hold a Consumer Credit License under the Consumer Credit Act. I therefore propose to report you to the Office of Fair Trading’s Consumer Credit Fitness Investigation and Enforcement team for their review.

I am also preparing a formal complaint to the Financial Ombudsman Service, as you have failed to respond to my formal complaint sent to you on 7 December 2007.

I believe that Leeds Trading Standards may also have an interest in hearing my complaint, at this time. I will leave you to judge what that means, as this stage.

I am, however, willing to delay this action, for a period of 7 days only, in order for you to confirm, in writing, that you will formally recall this Default Notice and strike details of its issuance from your records with immediate effect within those 7 days. The issue of this notice is unlawful under the Data Protection Act 1998 and is contrary to my s.10/s.12 Statutory Notice under that Act also. If you fail to do so, I reserve the right to take the actions outlined above, or any other that I deem fit to take, as a result of your failure.

You will see from your files that this account is “in dispute” with GE Capital Bank Limited - that this dispute still stands and has not been resolved.

As this account is in dispute and you were aware of this and are continuing to carry out collection activity, I now feel that you are in breach of your obligations under;

§ The Office of Fair Tradings Collection Guidelines – s2.8;

o “i. failing to investigate and/or provide details as appropriate, when a debt is queried or disputed, possibly resulting in debtors being wrongly pursued”

§ The Banking Code – s.13.6

o “k. not ceasing collection activity whilst investigating a reasonably queried or disputed debt.”

§ Your Consumer Credit License

As such, I must ask you to take notice that you must cease all collection activity with immediate effect. The alleged credit agreement you are relying on does not provide you with permission to continue to contact me regarding this account, either by post or by personal contact, be that by telephone or visits to my property. In fact, OFT rules and regulations clearly state that you can only visit me at my home if you make an appointment and I have no wish to make an appointment with you. There is only an implied license under English Common Law for people to be able to visit me on my property without express permission; the postman and people asking for directions etc (Armstrong v. Sheppard and Short Ltd [1959] 2 Q.B. per Lord Evershed M.R.). Therefore take note that I revoke license under Common Law for you, or your representatives, to visit me at my property and if you persist in sending "doorstep callers" to my home, you will be reported for harassment and be liable for damages for a tort of trespass. You would also be liable for conspiring in a tort of trespass by acting in defiance of my instructions and sending someone to visit me nevertheless. Should it be necessary, I will obtain an injunction from the Court.

I also deem any further collection activity, of any nature that involves contacting me in relation to this account, an act of personal harassment, for the reasons outlined in this letter. Please ensure that your system is updated to reflect this, as I will bring any further letters or phone calls to the attention of the Police, to whom I will make a formal statement regarding your conduct given I have already warned you your behaviour causes me to feel harassed.

I am of the view that your continued harassment of me puts you in breach of Section 40 of the Administration of Justice Act 1970, and the Protection from Harassment Act 1997.

If you continue to harass me by calling me, you will also be in breach of the Communications Act (2003) s.127 and I will report you to OFCOM, Trading Standards and The Office of Fair Trading, meaning that you will be liable to a substantial fine.

Be advised that any further telephone calls from your company will be recorded and used as evidence in any further formal complaint.

I look forward to hearing from you soon and, in any case, with 5 working days of your receipt of this letter regardless.

Yours faithfully,

[Blossomandebony]

Originally Posted by car2403

Hearing date set for the Data Protection Act S.A.R - (Subject Access Request) late response damages - case considered appropriate to refer to mediation, or hearing date set for 18 April. (20 mins) Standard small claims track directions, file/serve documents at least 14 days before the hearing, etc, etc...

 

Surely they aren't going to take this all the way for £90+£30 issue fee+£25 hearing fee, are they?

 

Hi, Car,

 

Just skimmed through your thread and was very impressed by your ultra professional claim for costs a few posts ago!!! (Though I think you are being very generous by not claiming for treble that amount!).

 

Regarding the above quote, I had an identical case against Capital Bank about a year ago. My SAR request was only satisfied two weeks after the deadline of 40 days had passed. So, naturally I had issued a court claim by that time to:

 

1. Force them to comply with the SAR request, and

 

2. To pay me compensation of £300 for the expense of stationery, research etc on account of their non - compliance.

 

You would think that they wouldn't have bothered defending - as you suggest because the amounts were so small - but they did!

 

On the day of the hearing the district judge was fair and listened to my arguments BUT he concluded that - in a small claims court - both sides should pay their own costs. (Though I must say that I didn't have anything as good as your skeleton argument to back me up).

 

In other words, he didn't award me the £300! Happily, he didn't award any costs against me either. The Bank's solicitor had admitted that the SAR request was complied with AFTER the deadline and apologised for that. So it was a stalemate situation.

 

(However, another case I brought against the COOP for non compliance of a SAR within 40 days was settled before court for the grand total of £80!The Coop obviously didn't want to incur solicitor's costs when they could settle for a token payment.)

 

Hence, I can't see your claim for compensation re: non compliance of a SAR request being successful, unfortunately. However, the other side may not turn up at court and thus annoy the judge, so you never know. Here's hoping . . .

 

Good luck, BAE

[car2403]

Data Protection Act S.A.R - (Subject Access Request) enforcement/damages claim;

 

Court Bundle received from Salans for the Data Protection Act S.A.R - (Subject Access Request) damages hearing on the 18 April.

 

It's a bit strange, as they've included the same correspondance I have in my bundle, but seem to be relying on the agreement along with a "blank application form" (that's how they have referred to it!) then some account statements - quite how that justifies that they complied with my S.A.R - (Subject Access Request) request on time, I'm not sure.

 

As a reminder, their Defence to my S.A.R - (Subject Access Request) claim, (late information, so pursuing for costs in chasing them, etc) can be found here;

 

http://www.consumeractiongroup.co.uk/forum/other-stores/110148-car2403-ge-capial-bank-2.html#post1379810

 

I'm surprised that they haven't offered a settlement, or taken my offer, here, as they clearly were late with the information, (their own bundle proves this!) will have to pay for someone to defend them in the hearing and will have to at least pay my costs for issuing the claim. (£30 issue fee and £25 hearing fee) They have no chance of getting costs of attending on the day, even if they Judge decides I lose, (unlikely) as it's a small claim.

 

Oh well, lets see what happens before/on 18 April, then.

 

Default Claim;

 

 

The Court Order gave until 10 April for "negotiations" to take place - remember that this was specifically requested by the solicitor attending the hearing! Since then, they've had this from me;

 

 

I've heard nothing from GE regarding any settlement of the default claim, so this is off to them;

 

I refer to the above claim and your failure to reply to my offer of settlement dated 10 March 2008, a copy of which is attached.

 

The representative attending the recent Court hearing requested a stay of 1 month to allow these negotiations to continue – to date, I have heard nothing from you in an attempt to do so.

 

How would you like to proceed?

 

Yours faithfully

 

If no agreement has been reached, I need to write to the Court to tell them by 10 April. (It hasn't!)

 

If the claim is to proceed, I can amend my POC and need to submit them by 14 April and await further directions.

 

I don't think I need to amend my POC now. I seem to remember (too many claims going on at once!) that I wanted to amend to reclaim the penalty charges that were applied to the account prior to default, but GE have sent a letter saying they will refund these (plus contractural interest applied to the charges) on to the account, so I don't need to do that now. I would like to see the outstanding balance, so I'm asking for a statement showing the adjustments they have made, along with statements for the entire lifetime of the account.

 

This is all very clever of GE, as I can blantantly see what they are trying to do. Their plan, which is quite clear to me, is to refund the penalty charges applied (along with contractural interest) then default/terminate the account again, once they've done that. In fact, I've already received the newly created default notice - see the posts at the top of this page of the thread for that. I've scanned it in and posted it here, for you to see; (it doesn't contain all the prescribed terms, BTW - will GE never learn?)

 

http://aycu27.webshots.com/image/50226/2000507863665447222_rs.jpg

 

I don't think this will work, because;

 

Failure of a Default or Termination Notice to be accurate not only invalidates the Default or Termination Notice (Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give the Claimant a claim for damages. (Kpohraror v Woolwich Building Society [1996] 4 All ER 119)

 

As their actions on this account amount to an "unlawful rescission of contract", they can't suddenly amend the account to remove the charges/interest and reissue the default notice again, IMHO. Why? A default notice is a method of terminating an agreement - as the original default notice included the penalty charges and I've suffered damage - (or at least have a counterclaim against them, if the Court doesn't accept the damages issue) they now do not have an agreement/contract that they can default/terminate within the terms of Part VII, s.87/s.88 CCA 1974. Even if they did, I would still be arguing that the same account/contract/agreement can't be defaulted/terminated twice, as there is no remit for this in the CCA - and such default/termination is clearly meant to bring the original agreement to an end.

 

I'll be including all this in my witness statement that will be needed nearer the hearing.

 

Don't forget that I still have the issues of improper execution of the agreement to argue - if that stands up, the original default, never mind this "new" one, would be unlawful.

 

I can't see anything happening in the next few days, so this is ready to post to the Court on Monday; (copy to Salans)

 

As ordered by District Judge XXX on XXX, I am writing to you with an update as to how the negotiations between myself and the Defendant is progressing.

 

Briefly, at the Directions Hearing on XXX, Mr. XXX, the representative appearing for the Defendant, requested a stay of proceedings to allow without prejudice negotiations that I had commenced with the Claimants representatives to continue. This was despite several pieces of correspondence between the parties prior to this date, where the Defendant had refused to negotiate with me on the issue of default removal, as outlined in the claim, going unanswered. I, however, agreed to a one month stay, on the basis that the Defendant would make a reasonable attempt to open up these negotiations further and reconsider it’s position on this precise issue.

 

I’m disappointed to have to inform the Court that, despite further correspondence being sent from me to the Defendant, the Defendant has failed to reply to my attempts to reach a settlement of the issues in dispute.

 

Further to this, the Defendant has saw fit to refund the charges applied to the account in question, (along with contractual interest applied as a result of the application of those charges) and to then go on to send me a “Default Notice” issued under s.87(1) of the Consumer Credit Act 1974, dated 26 March 2008. (Copy attached)

 

I believe that the Defendants behaviour in these proceedings is an attempt to frustrate my action against it, in that the Defendant is trying to falsely alter its position in defence of my claim against it. The Defendant is substantially changing its position prior to the final determination hearing at which the Court can decide the issues I’ve highlighted. I further believe that the Defendant will continue with this enforcement action, in the form of actually defaulting and terminating the agreement again. This is clearly against the overriding objectives of these proceedings – and is, indeed, in breach of the Office of Fair Tradings guidelines on Debt Collection, as the Defendant is seeking to enforce the agreement (in the form of a further default or termination) while the agreement is in still under dispute with the Court.

 

I believe that this further default or termination of the agreement must fail, as the issues in the claim surrounds the default and termination action already taken by the Defendant in relation to the account – there is no remit for the Defendant, in either the Consumer Credit Act or in the contract itself, for such action to take place twice, in relation to the same account. Further, (as I have already outlined in the claim itself) failure of the original Default or Termination Notice to be accurate not only invalidates that Notice (Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339) but is an unlawful rescission of contract which would prevent the Court enforcing any alleged debt. As the Defendants actions under the original Default and Termination of the agreement amounts to an unlawful rescission of the contract itself, any further attempt by the Defendant to recover its position by refunding these charges and Defaulting and Terminating the agreement again must fail – in law, no such agreement can be said to exist, due to this rescission, at this time, so the “agreement” is incapable of being terminated a second time around.

 

It is fair to say that the Defendant is at liberty to refund the charges applied to the account, but it is significantly altering the balance of powers of the parties at the forthcoming hearing by doing so, here. This is clearly unjust and inequitable in my view. I believe that the Defendant is abusing the Courts process, as it has requested a stay of proceedings to seek an out of Court settlement and has then used this time to further harass me in to making payments under the account while it is dispute.

Indeed, the Defendant itself has stated in a letter to me that it will place a temporary hold on my account to ensure I will receive no further collections correspondence. (Copy attached)

 

It is for this reason that I would respectfully ask that the Court order the Defendant to refrain from further defaulting/terminating the agreement again, or from taking any further Debt Collection activity on the account, for the reasons stated in this letter, and in the claim itself, to allow the substantial issues to be dealt with by the Court at the final determination hearing instead.

 

I have already written to the Defendant in these terms, but it has again failed to reply to that correspondence. (Copy attached)

 

In the alternative, where the Court decides not to take this action at this time, I would like the Court to know that I will be making further submissions surrounding this issue, to be included in a witness statement, at such time that this statement so ordered by the Court.

 

With regards District Judge Atherton giving me leave to submit amended particulars of claim, I would like the Court to know that I will not need to submit those documents – I originally requested leave to do so in order to amend the claim to include recovery of the charges applied. As the Defendant has agreed to refund these, plus interest, I do not feel I need to submit amended particulars of claim at this time.

 

Yours faithfully,

 

This claim has already been allocated to the small claims track.

[tomterm8]

OK, well, to give my 2p (that you asked for)...

 

recision of contract is a minefield. If they defaulted you unlawfully, they you are entitled to compensation for that default, but they are still (normally) entitled to their money back for services rendered under the principal of restitution.

 

In the above case, the compensation was greater than the amount owed, but this is at the discretion of the court.

 

They would not be entitled to seek early repayment of any sums due under CCA 1974, but it is likely that any repayments of the loan are already due? And any such sums can be claimed via the court, despite the lack of a default notice.

[car2403]

OK, well, to give my 2p (that you asked for)...

 

recision of contract is a minefield. If they defaulted you unlawfully, they you are entitled to compensation for that default, but they are still (normally) entitled to their money back for services rendered under the principal of restitution.

 

In the above case, the compensation was greater than the amount owed, but this is at the discretion of the court.

 

They would not be entitled to seek early repayment of any sums due under CCA 1974, but it is likely that any repayments of the loan are already due? And any such sums can be claimed via the court, despite the lack of a default notice.

 

Thanks for popping in TT8, much appreciated.

 

Isn't the point here that the recission of contract means the Court can't enforce the debt? Legally, there can be no agreement if they have defaulted/terminated unlawfully - or, rather, that's my reading of the Act and the Woodchester/Wilson cases.

 

Incidentally, the fees for bringing the claims (there are 2 - default removal and DPA SAR enforcement) are more than the outstanding balance - I've offered to withdraw on the basis of write off of the debt and default removal, an offer which they haven't taken.

[tomterm8]

No, the courts can enforce a debt via the law of restitution, however, the court can't enforce early repayment, AND, they haven't legally terminated the account and so a default on your credit record is unlawful.

[car2403]

Is it worth asking them to remove the default and offering a consent order to pay regular payments, if they close the account and stop adding interest? That's after they've shown me the calculations regarding refunded charges, etc, first though.

 

I'm happy to pay, I just want this default removed.

[tomterm8]

That might be worthwhile, but I would hold off for a while and see. It's always worth negotiating by telephone, but say it is "without prejudice". If they refuse, you've lost very little.

[car2403]

Looking through the file again, this £206 balance seems to be the outstanding amount owed as well - they must have refunded the charges plus interest, leaving only that amount.

 

I think I'll just pay this off now, to prevent them defaulting the account again and continue with the claim for unlawful default from the first time around.

 

If they want to play games, they've picked the wrong person - I'm sure the Judge will frown on their approach, as they could have easily done this when I started complaining. IMO, they've forced this issue in to Court and are now wildly backpeddling to strengthen their position in defence - it won't work, as I will get my way.

[car2403]

Data Protection Act S.A.R - (Subject Access Request) enforcement/damages claim;

 

Court Bundle received from Salans for the Data Protection Act S.A.R - (Subject Access Request) damages hearing on the 18 April.

 

It's a bit strange, as they've included the same correspondance I have in my bundle, but seem to be relying on the agreement along with a "blank application form" (that's how they have referred to it!) then some account statements - quite how that justifies that they complied with my S.A.R - (Subject Access Request) request on time, I'm not sure.

 

As a reminder, their Defence to my S.A.R - (Subject Access Request) claim, (late information, so pursuing for costs in chasing them, etc) can be found here;

 

http://www.consumeractiongroup.co.uk/forum/other-stores/110148-car2403-ge-capial-bank-2.html#post1379810

 

I'm surprised that they haven't offered a settlement, or taken my offer, here, as they clearly were late with the information, (their own bundle proves this!) will have to pay for someone to defend them in the hearing and will have to at least pay my costs for issuing the claim. (£30 issue fee and £25 hearing fee) They have no chance of getting costs of attending on the day, even if they Judge decides I lose, (unlikely) as it's a small claim.

 

Oh well, lets see what happens before/on 18 April, then.

 

The DPA SAR damages claim has been settled - £100 cash and I'm withdraw my claim. The hearing on 18 is to be vacated.

 

Just the default issue to continue with now - I paid the arrears on the day the "new" default notice expired, so within the prescribed period. (I've even called back to check it was received on that day, and it definately was)

 

Given that the original default was unlawful, containing charges that they've now agreed to refund to the account (plus the contractural interest applied on those charges) I no longer have a debt with GE at all. If they agree to remove the default, I will agree to withdraw the claim.

 

Incidentally, they (Salans) wrote to me on 6 March to say they would refund the charges and interest - that hasn't happened yet, according to Customer Services. I'm now writing to them to say they haven't done what they said they would, have attempted to unlawfully default me again as the "new" default notice included the charges that they haven't refunded yet again and that I will agree to discontinue the claim if they agree to remove the defaults now, especially as the outstanding balance will be clear once they get their fingers out and refund the charges/interest. Worth trying my hand at settling, now, I reckon? All I want is this damned default removed! If they don't take the bait, I should be hearing from the Court sometime next week or the week after that with the final determination hearing date.

 

Interesting times...