car2403 -v- GE Capital Bank (Default removal)

[car2403]

Car are you coming to the Newcastle meet? There is a thread about it somewhere if you haven't found it yet? Aug 16th.

 

Typical! I'm working away right now and won't be back for 16th.

[car2403]

Oh shame, but there will no doubt be another one. It is 16th August not July BTW - are you away all that time?

 

Yup - only back 1 day a week until October

[car2403]

I now have no fingers left, (I'm writing this with speech recognition software, before you ask!) as GE Money have failed to comply with the first set of directions from the Court. They should have filed their submissions with me by 20th June - they ain't!

 

Not to worry, as the next set of directions, (which clearly didn't override the first set, BTW) state they need to serve their submissions on me and the Court by 11th July - that's one week away, GE, if you're watching

 

All I have to do is reprint what I sent to them on 20 June and send that to the Court by 11 July, then wait out the final hearing date of 25 July, when GE will be forced to show the actual amounts they incurred when they applied the default charges to the account.

 

Not long to wait now, then...

 

 

Despite me fully complying with all Court Orders, GE now have failed to comply in return. This just isn't acceptable.

 

They now have failed to pre-disclose their case in defence of my claim, which they should have done before 20 July. They have also failed to pre-disclose the documents they intend to rely on at the trial, which they should have done before 11 July.

 

Tsk, tsk, GE...

 

I think there'll be a nice little email going of to Salans today, with a scanned copy of all Court Orders they have failed to comply with, seeking an explanation and asking them to comply within 7 days.

 

The hearing is next Friday - 25 July.

 

I won't be bothering contacting the Court about all this. I'll just turn up on the day, ask the Court to award Judgment for me, as they haven't complied with the Courts orders, and pointing out that they failed to comply and had several of these nudge letters from me. There can be no excuse for not complying. I also don't want the Court to consider re-ordering disclosure directions, especially given GE's dispicable behaviour in this case so far, as that will extend the amount of time it takes to deal with all this.

 

Ho hum...

 

[car2403]

I think there'll be a nice little email going of to Salans today, with a scanned copy of all Court Orders they have failed to comply with, seeking an explanation and asking them to comply within 7 days.

 

The hearing is next Friday - 25 July.

 

Still nothing from GE yet, so they haven't posted what they should have to me - I'm not surprised.

 

I don't intend to let up on them this week, so there's now a statement of my costs incurred in bringing/litigating this claim against them going off Special Delivery. Costs total £275, which is a modest amount, IMHO, to claim as a LIP. Add that amount to the £1k damages, (relying on the Kpohraror case) plus Court costs of £150, and the claim now stands at £1,425. All this because GE won't negotiate on the Default removal issues.

 

Remember that they refunded the charges applied to the account, in response to me bringing this claim against them, then tried to Default me again, without the charges being included in the Default balance. Very sneaky! It shows what lengths they will go to, doesn't it? Good thing I was on to them and paid the balance off within the timeframe allowed by the Default Notice! I can't wait to see how they rely on their amended defence, (which they will have to, as they haven't submitted any documents under the Courts Directions, should they even turn up on Friday!) on the basis that the original Default was accurate since they've virtually agreed that it wasn't by their actions - but still haven't removed the Default!

 

In fact, while I was working my schedule of costs out, I've sent them 5 offers of settlement since the claim was started. All of which have more beneficial terms for them than I'm claiming. I'm sure the Judge will have to agree that I've been more than lenient on this one!

 

Roll on Friday, then...

[car2403]

Roll on Friday, then...

 

Well, Friday is here, so I'm off to Court in a tick! :o

 

I can't wait really - excited to see what happens now they seem to have blown their own case apart!

[car2403]

Okey dokey, I'm back. Took 2 hours, but here's the outcome;

 

The Judge summed it up like this;

 

The agreement provided by GE Money was just the first page which he hauled them over the coals about - "don't you know CPR requires original documentation to be produced at Court?" - the solicitor rumbled on about how GE can't store originals and this is a certified copy, which has the signatures on. The Judge asked where the rest of it was - the reply was that this was page 1 of 4 and that the original wasn't "reproduceable for Court", (which means they don't have it) so they produced a newer one, that was a completely different layout to mine and tried to pass it off as being "similar". I asked the question and they couldn't ask - the Judge just raised an eyebrow when they admitted they can't provide the other 3 pages.

 

Looks promising at this stage?

 

The Judge then said, "putting all this to one side", (you what?) that the agreement was improperly executed because it wasn't dated, so it was unenforceable under the CCA. He added that a Court Order would be needed to enforce the agreement, even though GE hadn't applied for one as the weren't seeking to enforce it, in Court. In his opinion, as I had made payments under the agreeement that met with it's terms, despite my argument that I was prejudiced by enforcement, (unlawful Default - see more later - and charges applied, etc) the Court would have Ordered the agreement be enforced if they were asked to do so.

 

Not so promising now?

 

Looking at the Default Notice, he decided a Default Notice is not a form of enforcement under the CCA - it's a precursor to seeking enforcement, but doesn't amount to an enforcement action, despite my argument. In any case, the default exists under the agreement, despite it being unenforceable without a Court Order, as the contract still exists, so GE was right to issue the Default Notice.

 

On a slippery slope now, right?

 

Looking at the charges applied, the question of whether they are penalties was dismissed because of the OFT Test Case on Bank Charges. The Court wasn't prepared to question the fairness of the charges, as that was part of the "price" for applying them, which was agreed in the original agreement. This despite the terms relating to charges being on one of the "missing" pages - "GE wouldn't have made such a mistake in constructing their agreements", the Judge mentioned. When I mentioned that the charges were unfair because I wasn't aware of them, that was dismissed as well. He did admit that the fairness of the amount of the charge could be questioned, but that would still have to be decided - he mentioned that the OFT uses £12 as a reasonable fee, so £15 probably would also be reasonable. Despite all this, though, he did decide that there was a possibility that the charges were unfair, so the Judgment takes that in to account.

 

Light at the end of the tunnel?

 

Back to the Default Notice and he agreed that Woodchester -v- Swaine applied and that the balance outstanding was inaccurate, because of the fairness test above. He did say that the CCA doesn't require the balance to be stated, and that the default amount to be repaid was stated, but as the fairness test either couldn't be decided and that there was only a possibility that the charges were unfair, that he couldn't state with any certainty that the default amount provided was inaccurate. If he could do so, he couldn't decide if they were "de minumus", because the test of fairness couldn't be applied completely. (Pending the outcome of the OFT TC) All this throws doubt on whether the Default Notice was indeed invalid.

 

The Default was shared with the CRA's - including the Default amount that was in question. It could be argued that this information is inaccurate under the DPA, as we can't decide if it's correct or not yet. At this point, he indicated that he would provide an order to remove the data from the CRA, that GE could continue to process internally and that the claim for damages would be dismissed, (this despite me having letters from my mortgage company stating "we've reviewed your credit file and put your rate up by 2% because of adverse credit", in effect!) but he would only do that if GE would agree - GE didn't agree, so he decided not to do that!

 

As all sums had been repaid, so nothing was due, and all charges/interest applied on them had been refunded, with the balance being zero, he decide to dismiss the claim completely.

 

He did say that the fact I didn't have evidence of the CRA entry for the Default amount didn't help me, but that wouldn't have won me the case neither.

 

As the Court wasn't satisfied that the data was inaccurate, he couldn't order removal from the CRA file without GE's consent - effectively, s.14(1) gives the Judge discretion to decide if the data should be removed or not - and he decided it didn't, because he wasn't satisfied that it was wrong. As there was only a possibility that the charges were unfair, there was only a possibility that the data was inaccurate, which isn't enough.

 

So...

 

I LOST!

 

There be no order as to costs.

 

I'm not reeling from this, as it's been a massive learning curve - along with my other thread.

 

I'll post my thoughts up over the weekend, but I want to get your views first.

[car2403]

Ok. here's some more info to whet your appetite and hopefully put this Judgment in a little more context.

 

The Judge was clearly "creditor-bias", IMHO. Why? Well, this is the same Judge that I had against O2 - you can read the debarcle that was that decision, where I was "forced out of the Court system" by this District Judge, here; (post #181 at the top of page 10)

 

http://www.consumeractiongroup.co.uk/forum/telecoms-mobile-fixed/111666-car2403-o2-wescot-dca-10.html#post1565156

 

I had exactly the same experience here. While the Judge was eager to be seen to be "listening" what I was saying and my argument against GE's process used to Default the account, he clearly wasn't "hearing" what was actually been said. Having said that, I do think I convinced him of the inaccuracy of the information, which is why he gave GE a get-out option midway through the hearing - GE, being switched on, then came up with the CRA reciprocity agreement argument, stating they had a duty to maintain the record and as I couldn't doubt it's accuracy, the Judge couldn't order it's removal. The Judge just accepted this, without question, despite me highlighting the fact the "agreement" relied on doesn't include a "we can charge you £X when you default" clauses! I actually thought he was leaning my way when he mentioned CPR regarding written contracts in Court, but again GE's solicitor pushed the issue and the Judge backed down on that too.

 

He also admitted that he didn't know Consumer Law, so would rely on GE's Solicitor's interpretation to "assist" him in understanding my claim - I was at a clear disadvantage. A good example of this was Wilson -v- FCT. The Judge wasn't aware of the case, (probably out playing golf, rather than reading that Judgment, to be fair) so again relied on the Solicitors interpretation of the fact that the contract still has "legal effect" outside of enforcement under the CCA, meaning that GE could still process and share my data.

 

When he mentioned that the agreement should be binding on me, because I'd made payments in accordance with it previously and hadn't doubted the legal basis on which it was made before, I mentioned CAG and that I had only recently learned of the legal status required by CCA agreements - as with my O2 claim, this seemed to scare him a little, especially when he found out of the interest in this thread. I also mentioned that I just discovered the legal argument of mistake and put to him that I had made a mistake in law by making payments under an agreement that couldn't be enforced without a Court Order. If the agreement was irredemably unenforceable, this would have been the point that I would have won the case.

 

So, even though the Default Notice was faulty, the charges were unfair, (even under the Judges own opinion that the OFT view of £12 would be fair) and the DPA/ICO guidelines on applying the Default with the CRA were all in my favour, the Judge still folded under pressure from GE and I lost.

 

This sounds like I'm on a downer - but I'm not! If you review my other threads, you'll see that this one is actually quite a small issue in comparison with the others. I've even had HFC write off £5k and remove my Defaults, because I found CAG! Admittedly, you can't win them all, all the time - but if I had to lose one case, just to prove that the Judge Lottery doesn't always work in your favour, I would have chosen to lose this one.

 

The impact? I now have a very small value satisfied default on my CRA file for the next 6 years. I'm sure I can live with that, especially as I managed to avoid GE's costs, which would probably have been more than the damage this default will be causing me over that time. Also, I haven't considered challenging the CRA's right to continue sharing for 6 years yet, so this one might just not be over, albeit GE has won the battle, but not the war!

 

[car2403]

The really frustrating thing is that the Judge who heard the CMC was in the other Court, just next door, when all this was going on - if the Coin had flipped in another direction, I would have had that Judge again and would have won hands down, plus he would probably have awarded costs to me as well.

 

Luck of the draw.

[car2403]

Now I've had some serious reflection on this Judgment, I consider it all wrong.

 

The Judge looked at the OFT test case result that bank charges are not penalties in contract law - in fact, the OFT test case decided that the charges under the revised terms and conditions applied by the banks are not penalties. This has a massive impact - I'm just annoyed I didn't realise it on the day of the hearing now. The Judge said that all default charges are not contractural penalties, so didn't even consider my argument on it. That's a serious flaw. If he did, GE would have to prove the wording of the term allowing them to charge the penalties, or show that they weren't contractual penalties at all - IMHO, they couldn't do either of those things.

 

I think I'll draft a nice letter to Salans and point this out to them - if they have any sense, they will remove the Default. If they don't, I may just consider appealing this decision, based on this information.

Edited August 2, 2008 by car2403

[car2403]

Taken from Small claims

 

Appeals

 

 

 

You may appeal against a judgment in the small claims track only if the court made a mistake in law or there was a serious irregularity in the proceedings. If you want to appeal, you must file a notice of appeal within 21 days. A fee is payable

 

Relying on the OFT Test Case Judgment must be a mistake in Law or serious irregularity?

[car2403]

But isn't he OFT Test Case judgement a High Court Ruling? If so the DJ is ok to follow it. :-|

 

Agreed, however, how can the DJ follow it when the Banks T&C's can't be compared to GE's, as they don't have the page with the original term on it to demonstrate that it's similar. (I have a feeling it probably isn't)

 

The onus would be on GE to prove the term wasn't a penalty, which they escaped in the hearing because the Judge took the TC Judgment for granted.

 

I could be wrong, so I'm happy to be countered on it, but I think this could be a decent reason for appealing? :idea:

[car2403]

Had the prescribed terms been missing, it would have been irrevocably unenforceable.

 

As it stands, it was merely improperly executed, as it contains the prescribed terms.

 

My challenge was against the Default - arguing the charges applied were contractural penalties, or unfair under UTCCR.

 

The Judge ignored the fact the agreement was only page 1, (with the prescribed terms/signatures on) and didn't mention agreeing to apply any charges.

 

As the charges were applied, outside of the agreement, the Default is unlawful.

 

The Judge decided that GE couldn't have made such a mistake, regardless of not having the other 3 pages of the agreement, and refused to order the removal of the Default under the CCA/Data Protection Act, as a result.

[car2403]

By rule, generally, small claims track hearings don't have a recorder sitting in on them, nor are they recorded - I've been to lots and none have been.

 

The issue here is I only have 21 days to issue any appeal, so time is running out. I don't want to rush in to this, on the other hand, so I'll have to sum up my thoughts over the next week, or my application could well be time barred.

 

Any advice on how/where/when to appeal a SCT Judgment would be most welcome at this point - as this default is quite small and now satisfied, it may just not be worth the hassle, which is something I'm finding difficult to swallow at this point. (I also don't really have the time to prepare this in sufficient detail, at this point in time, neither)

[car2403]

Right, I haven't had time to prepare a full appeal on this case and I'm now out of the 21 day time frame. As I'm unlikely to be able to appeal this within the next few weeks, due to still working away from home, etc, this is how I'm going to approach it.

 

I'm going to write to Salans to suggest they "encourage their client to remove the Default", as I intend to appeal the Judgment on the basis that the Judge decided the charges applied could not be contractural penalties on the basis of the preliminary Judgment in the OFT test case. In fact, in the OFT's Q&A from 14 August on the current state of that issue, this is what is said;

 

4. Why was the second preliminary issues hearing necessary?

 

Because the April ruling was limited to current charging terms, a further hearing was held in July to determine whether the charging terms in the banks' historical and basic bank accounts (and certain other non-mainstream current accounts)

• can also be assessed for fairness under the UTCCRs, and

 

• whether they are capable of being penalties at common law.

The current terms and conditions are those in force as at the date of the hearing that commenced on 17 January 2008. Historical terms and conditions are a representative selection of previous terms and conditions that are in dispute in the county courts between individual customers and the banks. Non-mainstream accounts include for example student and under 18 accounts.

We do not yet have information about when the judgment from that hearing will be handed down.

 

As the Judge didn't consider my argument that GE's charges are penalties, based on this preliminary OFT TC Judgment, I will be arguing that there has been a precedual irregularity, in which case I will be appealing.

 

I will give GE 7 days to confirm they will remove the Default, (especially as the Judge considered - probably obiter now, but it's worth reminding them - that the Default could be inaccurate under the Data Protection Act, but he couldn't consider the test of fairness under the UTCCR, as it was a question on the price to be paid for the service) or I will appeal the Judgment 7 days later.

 

Ultimately, I could do without the hassle of paying another £100 in fees for an appeal, having to request leave to appeal as I'm out of time, (but being a LIP and working from home, not having the chance to seek advice prior to appealing would be a good reason for granting the leave to appeal, IMHO) as all I want is the Default to be removed.

 

If GE don't go for it, I will appeal, in which case I now have a few weeks to prepare. Also, if they don't agree to remove it, I will be making a formal complaint to Salans that their representative on the day mislead the Court as to the impact of the OFT TC Judgment on the hearing - I'm sure, as an officer of the Court, that won't (hopefully!) sit well with him, or Salans, and that might convince them to keep me quiet.

 

In either case, this isn't over for me...

[car2403]

Blimey, yes, it has been a while, hasn't it...

 

Well, I've sat on my fat rump with this one and done sod all.

 

What with the credit crunch, I haven't needed credit - nor do I plan to need it - so the default I still have for this one will be a good lesson to me not to take on debts without properly considering my circumstances fully.

 

It might be a different story if I ever need to rely on credit again in the future, but this really won't take long to come off the file, so I haven't expended the energy needed to take it forward.

 

Having said that, this is one of the few default non-successes I have had along the way, so I don't see this as a "loss"...

 

I suspect I may review this Judgment when the OFT TC outcome is known - particularly as I still strongly feel that the Judge should have stayed the claim. He effectively ruled in this case that the charges applied were fair and were not penalties. That'll come in useful when the Banks lose and I start a claim to recover the penalties applied, then ask to appeal this decision in light of that claim when I win. (Ok, if the OFT TC is in our favour!)