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Defaults - background, removal methods, challenges and taking a claim to Court

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Hello everyone,

 

NOTE: This post is the result of many hours searching through the forum threads on this subject - if I've missed anything, please post a reply and I will edit this opening post so the most correct information/advice appears at the top. (You will need to read the entire thread to understand the whole issue, however!) I'd also ask that you don't "state your case" on this thread - please start your own thread and make a post to this one with the link, which will make this easier to read.

EVEN BIGGER NOTE - February 2010: There has been some very recent caselaw surrounding the challenging of Defaults (namely, challenging CCA agreements) that HAS NOT been included in this post from August 2007. I would SERIOUSLY advise you to start a thread, in the right place in the forum, BEFORE you begin following the advice below. That way, folk can direct you along as you go. One of these days, I'll get around to updating this with recent developments. (Fingers crossed...)

 

;)

 

After spending a LOT of time with other CAG-ers recently over the bank fee/charge issues, I'm now turning to look at the resultant "Default" issues that I've came across while doing it. (I have a personal interest, as you'll soon see from the links in my signature!)

 

Now, excuse my frankness, but there is a lot of information/posts in the "Data Protection and Default Issues" forum (amongst others) regarding this issue - and I, for one, (and I know I'm not the only one, seeing posted replies to my threads) am confused by the amount of information.

 

The aim of this post is to clarify all the other posts, so I suggest that we all work together to get this right as this will be the first place we can "direct" those new to the problem.

 

(Also - if enough of you ask for it - I may even achieve my first "sticky status" post... which hasn't happened before! Woo hoo!)

 

Background:

 

The background to this is dead simple, really!

 

Any company that has "charged" fees to your account/agreement, etc, can be pursued in a few ways to "reclaim" those fees if they are unreasonable. I won't spend longer on this issue, as there are far more detailed posts in the sticky/FAQ posts around in the relevant forums.

 

Some of these companies have seen fit to terminate customer accounts/agreements and some, in doing so, have also deemed themselves to "have the power of a County Court Judge" and have recorded a "Default" against the customers credit file with one/all of the CRA's. (Credit Reference Agencies)

 

Why is this such a problem? The Defaulted account will remain on your credit file (according to the CRA's, at least - more on this later) for 6 years and will effect any future credit applications you may choose to make. Companies that use these credit searches usually will either decline your application, or - in the case of the "sub-prime" market - (those that lend money to people with less than perfect credit histories) hike up your APR or add additional fees to accepting the application, because of this negative credit record.

 

I don't believe this can be right - the accounts are, at least partially, based on illegal/unenforceable account fees/charges. So how can these companies get away with it? This brings me on to the challenges!

 

Removal methods:

 

Now, I'm not an expert on this issue, so I'll leave it to those more experienced to highlight the removal methods that we can use to get this situation sorted;

 

Challenging the company using the Consumer Credit Act 1974;

 

http://www.consumeractiongroup.co.uk/forum/legalities/11659-how-get-your-default.html

 

Challenging the company using the Data Protection Act 1984 (as amended);

 

http://www.consumeractiongroup.co.uk/forum/legalities/24013-defaults-proposed-method-removal.html

 

Using a combination of the CCA and the DPA (again, read both links above)

 

Challenges:

 

There are a few challenges to using the methods above that I have came across; (feel free to share yours in reply, referencing your thread)

 

The company fails to supply some, or all the information required in your CCA request

 

These companies seem to think that it's fine to ignore a legal request for information that you are entitled to under the Consumer Credit Agreement - they don't seem to care that this makes the debt unenforceable in certain circumstances, or that the Default that you can legally challenge doesn't live up to the legal standards laid down in Statute!

 

Regulators that can't see the "big picture" and almost "refuse" to consider each other's opinions

 

As the Data Protection Act (DPA) is enforced (outside of a Courtroom, that is) by the Information Commissioners Office, this office is unable to consider a company that has defaulted on a Consumer Credit Act request, as this is outside of their scope - they even state to "contact the Financial Ombudsman Service" in their responses!

 

The Consumer Credit Act (CCA) is enforced (outside of a Courtroom, that is) by the Financial Ombudsman Service (FOS/FSO) - this office is unable to consider a company that has failed to satisfy the requirements of the DPA, as it is outside of their scope - they even state to "contact the ICO" in their responses!

 

This rediculous situation leaves consumers with only 1 option - take a case to Court and **hope** that you can pursude the Judge that your opinion is right and this company is wrong in what they have done.

 

Uncertainty over how long this information can be held for (processed) by each party

 

There is no clear authority on how long "defaulted accounts" can be displayed on your credit file. (This also applies to payment/arrears history's, financial associations - and pretty much every bit of "data" that exists about you as an individual)

 

The companies/CRA's claim they should process and display this information for a minimum of 6 years. This is again them making the rules up as they go along, as there is NO clear authority for this - some believe that this is a result of Money Laundering Legislation/Regulations that state information should be "held" (note, not "processed" or "displayed"!) for a period of 6 years after the account is closed. What seems to have happened is that "6 years" is now accepted as industry standard, (also note, not legally required!) so these companies are now refusing to remove this incorrect information until after it has expired beyond 6 years.

 

Credit Reference Agencies (CRA's) that don't care about us individuals, as their "customers" are paying their wages - and some even have VERY close relationships with them!

 

There are 3 main CRA's - CallCredit, Experian and Equifax.

 

But - who are the "customers" of these Agencies, that are charged with keeping our information up to date and accurate?

 

Well, you'd be right in thinking that "we" (the consumers) were their customers - but, sadly, you'd be wrong!

 

The "customers" of these Agencies is actually the Companies that supply them with information, as they pay a fee (presumably - it's all very underhanded IMHO!) to access the information they hold and also share information about your account - including the fact it has been defaulted incorrectly/illegally - with them to share with their other "customers".

 

This situation is ludicrous, as these CRA's always say "contact us to complain about your information being incorrect", but are notorious for saying "this is supplied by our customer as factual information - take your complaint up with them, not us".

 

If you look really, really closely, you'll also see that some of the "Debt Collection Agencies" used in these cases are actually owned by the Credit Reference Agencies - or they have very close links to each other. (Members of the same "Group" of companies, etc) This sounds very much like a "cartel-affair" to me!

 

So, how can you challenge these defaults? All this leaves those that haven't had companies "back down" when challenged with only 1 place to go to enforce your rights - and that is the inside of a County Courtroom!

 

Taking a claim to Court:

 

This is not only difficult because many people don't want to sit in front of a Judge to state their case, but there is also a distinct lack of legislation/case law and precedent that you can use in a legal argument based on enforcement of the CCA and DPA!

 

This is a situation that these companies actually encourage, as they don't want to be bogged down with legal argument over a single account - but instead are only interested in making incorrect decisions about individuals on a mass basis, then refusing to state their case for doing so! (This sounds very like the "Illegal charges" issue that is currently ongoing, so hopefully this is going to gain the same momentum!)

 

They actually discourage customers from going to Court by "making them believe" that they - not the Court system - are the ultimate authority on the application of English Law!

 

They do this in such a way that **most** consumers would give up and go away with their tail between their legs - of course, us CAG-ers aren't **most** consumers, are we? (All say "yes, Chris!"...Sorry about that, but this post was getting a little serious and I think I lost the plot for a second!) :p

 

Now, having said all that - remember that the law that related to illegal fees/charges has been around for over 200 years, but the Banks/Regulators don't recognise that it is "good law" and apply it in these instances? (This is a post on it's own, but basically the contractual law surrounding unenforceable penalties has been around for 2 centuries, but the Banks think they can act against it because it makes good "business sense" - and the regulator (the OFT) seems to agree with them!) Well, this is the same situation - you could argue that processing incorrect information about you is defamation of character! These legal principles have also been around - as "good law" - for centuries also! We should remember that when discussing this issue and not be blinkered into only thinking about the CCA and DPA.

 

 

So, going to Court... We now need;

  • Bullet-proof "Particulars of Claim" (POC) to issue our claims
  • Some sound "follow up" that we can use in response to the Court process. (Allocation questionnaire responses, outline of Court Bundles, legal precedent for our claim and a statement of evidence that states the issue at hand and probably some of the issues encountered and discussed in this thread)
  • The bottle to take the claim all the way, Win or Lose

WARNING AND DISCLAIMER:

 

 

These templates are intended as a guide only - I don't suggest you commence a claim based SOLELY on these templates, but this is a starting point!

 

You should start your own thread relevant to your own individual circumstances, as each case has its own merits and pitfalls, where you can get specific advice from our resident experts!

 

If you start a claim without doing this, please don't blame me or CAG if you don't get the outcome you want!

 

Particulars of Claim:

 

 

How's about this for POC to kick off the discussion?

 

[bLUE BRACKETS]: REPLACE WITH THE RELEVANT INFO

[RED BRACKETS]: FOR INFORMATION AND CAN BE REMOVED/ALTERED IF NECESSARY

 

1. Claimant is alleged to [hold/have held] an [account/agreement] with the Defendant, numbered [account/agreement number] [- a debt that the Defendant continues to pursue]

 

2. A “default” appears on the Claimant’s credit reference file relating to the [account/agreement]

 

3. The Defendant; [Alter this to suit your claim]

[a) Has defaulted on his obligation to respond to a request from the Claimant pursuant to s.77(1) & s.78(1) Consumer Credit Act 1974, under which the alleged agreement is alleged to operate;

b) Has failed to comply with a Statutory Notice issued by the Claimant pursuant to s.10 & s.12 Data Protection Act 1998;

c) Has applied the “Default” without complying with the requirements of s.87 Consumer Credit Act 1974

d) Continues to process data regarding the alleged default with Credit Reference Agencies]

 

4. The Claimant has suffered damage, namely [an increase in Interest rates and monthly payments made to other Creditors, due to the adverse credit information since being recorded by the Defendant] [Alter this to include damage you've suffered]

 

5. The Claimant respectfully seeks;

[a) A declaration that the debt is unenforceable under the Consumer Credit Act 1974;

b) Rectification, blocking, erasure or destruction of the inaccurrate data, which the Court can order under s.14 Data Protection Act 1998 – including details passed to the Credit Reference Agencies

c) Costs and damages at the discretion of the Court] [Alter this to suit your claim]

 

Follow up - Allocation questionnaire;

 

There is already a VAST amount of information on the forums regarding AQ's and their uses - take a look, here, for example;

 

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/11644-allocation-questionnaires-guide-completion.html#post90317 (Thanks to jonni2bad for the original post!)

 

Notes for completing a small claims track allocation questionnaire - Form N149

An online PDF version of the form is HERE

 

Section A - Settlement

 

"Do you wish any further action in this claim to be postponed for one month so that you and the other party can attempt to settle the claim either by informal discussion or by alternative dispute resolution?"

 

You have given ample opportunity to resolve this matter with the Defendant so there is no need to allow further time. TICK NO

 

Section B - Location of Hearing

 

"The claim will be heard in the court to which this form must be returned. Is there any

reason why it should be transferred to another court to be heard?"

 

If the reply address is your local court, then TICK NO. If the reply address has changed to another location, then TICK YES and state that since you, as a private individual, are claiming against a company who carries on business in this location, then the case should be heard locally to you.

 

Section C - Track

 

"Do you agree that the small claims track is the most suitable track for this claim?"

 

TICK Yes

 

Section D - Witnesses

 

"So far as you know at this stage, how many witnesses (other than yourself) do you intend to call to give evidence at the hearing?

Enter the number of witnesses you intend to call to give evidence not including yourself or any expert witness"

 

Typically this would be 0

 

Section E - Experts

 

"Do you want permission to use an expert’s report at the hearing?"

 

Unless you know otherwise, TICK NO

 

Section F - Hearing

 

"Are there any days within the next four months when you, an expert or a witness will

not be able to attend court for the hearing?"

 

Unless you know of specific date that you cannot attend court (holidays etc) then TICK NO.

 

Section G - Other Information

 

"In the space below, set out any other information you consider will help the judge to manage or clarify the claim, including any other information you consider should be supplied by the other party."

 

Give details of any other information that you consider will help the judge to manage the claim, referring as necessary to any documents you might have attached. Bear in mind however that at this stage you need not attach all other documents which you wish the court to consider at the hearing. This is something you will later be asked to provide.

 

You should state here that you believe the case will last no longer than 1 hour.

 

You may wish to add reasons why the case is more suitable for Small Claims Track if your claim value exceeds £5,000 or provide reasoning why the other side should provide evidence of their costs!

 

I recommend that you include a request for the Judge to order Special Directions, as follows; (Thanks and recognition goes to Paul - pt2537 - for this template)

 

If the court is in agreement, the defendant respectfully requests that special directions may be given as per the attached draft order.

 

The defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;

 

without production of the requested documents, I am at a disadvantage and am unable to serve a proper defence. Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with as without production of the requested documentation will inhibit the courts ability to deal with the case

 

The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) made it clear in paragraph 29 of LORD NICHOLLS OF BIRKENHEAD judgment

 

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give

notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and63, section 127(4) precludes the court from making an enforcement order.

 

Its is respectfully requested this case be allocated to the small claims track, it is a straight forward case and is easily resolved on production of the required documentation by the claimant, should the claimant not have the documentation required to progress this case I suggest that there will be no case to answer

 

Therefore it stands to reason that this document must be disclosed before this case can progress any further

 

A suggested template for Draft Directions, which we advise that you include with your AQ... (Thanks and recognition goes to Paul - pt2537 - for these Draft Directions)

 

 

 

In the XXXXXX County Court

 

 

Case Number XXXXXXX

 

 

 

 

 

number XXXXXX

 

 

 

 

 

 

 

Between

 

 

 

 

XXXXXXXX - Claimant

 

 

 

 

and

 

 

 

 

 

XXXXX - Defendant

 

 

 

 

 

Draft Order for Directions

 

 

The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

  • Copies of the Credit Agreement and any documents referred to within it which complies with the consumer Credit Act 1974 and all subsequent regulations
  • Default Notice compliant with s87 (1) Consumer Credit Act 1974 andConsumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended,
  • Document, contract or deed of assignment
  • Notice of assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925.
  • Copies of any statement or other document relied upon

If the Claimant fails to comply with this order, the claim will be struck out without further order.

 

The Defendant shall within 14 days thereafter file and serve the following

  • An amended defence sufficiently particularised in response to the documents supplied by the claimant

If the Defendant fails to comply with this order, the Defence will be struck out without further order.

.

Section H - Fee

 

"Have you attached the fee for filing this allocation questionnaire?"

 

You should note that if you do not pay this fee it might lead to your claim being struck out.

 

If you are the claimant, depending on the value of your claim, you may have to pay a court fee. If you have not applied for fee exemption or remission, the fee must be sent to the court at the same time as your completed questionnaire - in other words, you could get help from the court.

 

If you are in receipt of certain benefits, or if this fee would cause you undue hardship, it may be possible to pay nothing, a reduced fee, or even have the payment deferred until a later time.

 

Contact the Court directly if you think this applies to you.

 

Section I - Signature

 

This questionnaire must be signed by only the party to the claim, or litigation friend, or legal representative.

 

Follow up - Court Bundle:

 

WORK IN PROGRESS... Attachments for the bundle will follow later, but here's the basic content so far;

 

- All correspondance with the Defendant

- Responses to any complaints you have made to the Financial Services

- Ombudsman or the Information Commissioner's Office - this is vital to show you've already exhausted all "informal"/non-Court routes to resolve your query and will also fuel the Judge's disappointment that the official regulator isn't willing to sort themselves out!

 

- Relevant case law summaries; (THIS IS STILL WORK IN PROGRESS - PLEASE HELP BY POSTING A REPLY SO I CAN UPDATE THE 1ST POST)

Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998
- failure of a Default Notice to be accurate invalidates the Default Notice (this can be used in a cross argument with s.98 CCA 1974 Termination Notices, issued on Current Account Overdrafts, also)

Kpohraror v Woolwich Building Society [1996] 4 All ER 119
- failure of a Default Notice to be accurate is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give aa claim for damages in the sum of the amount of the Default, plus £1,000 in substantial damages caused to credit reputation

 

Wilson v First County Trust Ltd - [2003] All ER (D) 187
-

- Consumer Credit Act 1974

 

- Data Protection Act 1984

- Data Protection Act 1998

 

This is a WORK IN PROGRESS... feel free to contribute by posting in reply.

 

Follow up - Statement of Evidence:

 

 

 

Claim Number:XXX

 

 

 

In the XXX County Court

 

 

 

 

Between:

 

XXX

 

 

(Claimant)

 

 

 

and

 

 

 

 

 

XXX

 

 

(Defendant)

 

 

 

 

 

_______________________

 

 

STATEMENT OF EVIDENCE

 

_______________________

 

 

 

 

 

 

 

 

[bLUE BRACKETS]: REPLACE WITH THE RELEVANT INFO

 

[RED BRACKETS]: FOR INFORMATION AND CAN BE REMOVED/ALTERED IF NECESSARY

  1. I, [insert your full name here], am the Claimant in this case. I am a litigant “in person” and I make this statement from my own knowledge and experience.

  2. The Claimant is alleged to [hold/have held] an [account/agreement] with the Defendant, numbered [account/agreement number – a debt that the Defendant continues to pursue]
  3. The Defendant claims that the Claimant has defaulted on [his/her] obligations under the [account/agreement] and has recorded a “default” on the Claimant’s credit reference file (held with the Credit Reference Agencies) as a result as this.
  4. Upon discovering that the Defendant had recorded such information, the Claimant sought to request the following information from the Defendant; [Alter this to suit your claim]
    [a) Pursuant to s.77(1) & s.78(1) Consumer Credit Act 1974 (as amended): [Remember to change this to the wording of your CCA Request]
    i. A true copy of the original executed credit agreement;
    ii. A signed, true and certified copy of the original default notice;
    iii. Any deed of assignment where the debt has been sold on.
    b) Pursuant to the Defendant’s obligations under the Data Protection Act 1984 (as amended); (in the form of a Data Subject Access Request) [Remember to change this to the wording of your DPA Subject Access Request]
    i. Details of all default charges for unpaid items and fees charged for managing each account in the Claimant’s name;
    ii. Copies of all original executed Consumer Credit Act regulated agreements for each account held in the Claimant’s name;
    iii. Details of all manual intervention that has taken place in relation to the Claimant, or on accounts held in the Claimant’s name, with documentary evidence of such;
    iv. Details of logic involved in any automated decisions made by the Defendant about the Claimant, or the Claimant’s accounts, held with the Defendant.
  5. The Defendant; [Also alter this to suit your claim]
    [a) Has defaulted on it’s obligation to respond to the request, within 12 days, from the Claimant pursuant to s.77(1) & s.78(1) Consumer Credit Act 1974, (as amended) under which the alleged agreement is said to operate;
    b) Continues to fail on it’s obligation to supply the information requested under the Consumer Credit Act 1974, (as amended) thereby committing a Criminal offence under s.77(4)(b) of that Act;
    b) Has failed to comply with a Statutory Notice issued by the Claimant pursuant to s.10 & s.12 Data Protection Act 1998; (as amended)
    c) Has applied the “Default” without complying with the requirements of s.87 Consumer Credit Act 1974; (as amended)
    d) Continues to process data regarding the alleged default with the Credit Reference Agencies]
  6. The Claimant has suffered damage, namely, but not limited to, [an increase in Interest rates and monthly payments made to other Creditors, due to the adverse credit information since being recorded by the Defendant][Alter this to include damage you've suffered – if you have evidence showing this, that’s all the better so include it in your bundle! The aim is to show the Judge that you have suffered from the Defendant’s actions and that this isn’t just a “administrative task” of tidying up your Credit File without reason]
  7. The Claimant respectfully seeks;
    [a) A declaration that the debt is unenforceable under the Consumer Credit Act 1974; (as amended)
    b) Rectification, blocking, erasure or destruction of the inaccurate and unsubstantiated data – which the Court can order under s.14 Data Protection Act 1998 – including, but not limited to, those details passed to the Credit Reference Agencies by the Defendant in relation to this [account/agreement]
    c) Costs and damages at the discretion of the Court.] [Alter this to suit your claim]

 

This is a WORK IN PROGRESS... feel free to contribute by posting in reply..

 

I'm hoping that this post has grabbed your attention, especially if you are in this situation, as we need to work together to get this sorted out - safety in numbers! The aim of the post is to start pulling the "going to Court" information together and issue some claims to see where we get with this.

 

If you have any of this already, or experience of a Court claim over the same issue, please share your experience - in your own thread, with a link posted here - and we'll get the ball rolling!

 

Bring it on!

Edited by car2403
Adding additional Case Law summaries
  • Haha 4

Always happy to help where I can!

:lol:

Beware of legal advice given on a private forum - do you REALLY know who is posting? Are they REALLY accountable for their posts? What if you follow their advice and get something wrong?

It was Winston Churchill who said; "Democracy is the worst way to run a country except for all the others"

 

Advice and comments posted by car2403 are offered purely without prejudice. They reflect only my personal opinion and do not represent the opinion of this forum or it's management. You should always seek legal advice from a qualified legal advisor. As a member of the site team, I disable reputation - reputation points mean nothing, please check my posting credentials yourself and make an informed decision. You shouldn't PM me and await a reply - I may be too late with a response. No replies will be given in Private Messages - just as with getting advice from the forum, getting advice via Private Messages is dangerous. CAG is about sharing successes so others can follow your example, this is primarily why I'm here, so please don't be offended if I don't offer replies in PM that doesn't comply with this. Help CAG to help others by keeping your thread up to date.

 

 

USEFUL LINKS; New User Guide to CAG | Can't find what you're looking for? | Intro to Consumer Credit Litigation | Is My Agreement Enforceable | Default (Surleybonds) Template Letter | Defaults - background, removal methods, challenges and taking a claim to Court | Digital Signature Guide | Overdrafts and the CCA

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Hi Chris

 

Many thanks for taking the trouble to do this.

 

I've just had TWO defaults removed using the S10/12 Notice BUT this method was used in conjuction with creadit card money claims (N1) which are as yet unresolved in Court!

 

I have also issued a Notice to Capital Bank for a Default on an old loan who so far have failed to respond. So, N1 to enforce the Notice and also need to request same from ICO. I have just issued today a second Notice to Capital One for a closed credit card account with late payment marker data which I want removed from my credit file.

 

So, I will read through your information and reply accordingly.

 

Painty x x


'Fortune favours the brave.'

 

 

 

 

 

 

 

Any advice given is purely on the basis of my own views and opinions and offered in good faith.

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Thanks Painty - thought I was the only one reading this post for a minute there! ;)

 

I too have had 2 removed using these techniques, (Grattan and OnLine Finance) so they seem to work. Just a case of others trying the same and tweaking the content before we can say it's a solid method.

 

Re: your POC for the Default bits - I know you're still waiting on Court action, but are they similar to mine above?


Always happy to help where I can!

:lol:

Beware of legal advice given on a private forum - do you REALLY know who is posting? Are they REALLY accountable for their posts? What if you follow their advice and get something wrong?

It was Winston Churchill who said; "Democracy is the worst way to run a country except for all the others"

 

Advice and comments posted by car2403 are offered purely without prejudice. They reflect only my personal opinion and do not represent the opinion of this forum or it's management. You should always seek legal advice from a qualified legal advisor. As a member of the site team, I disable reputation - reputation points mean nothing, please check my posting credentials yourself and make an informed decision. You shouldn't PM me and await a reply - I may be too late with a response. No replies will be given in Private Messages - just as with getting advice from the forum, getting advice via Private Messages is dangerous. CAG is about sharing successes so others can follow your example, this is primarily why I'm here, so please don't be offended if I don't offer replies in PM that doesn't comply with this. Help CAG to help others by keeping your thread up to date.

 

 

USEFUL LINKS; New User Guide to CAG | Can't find what you're looking for? | Intro to Consumer Credit Litigation | Is My Agreement Enforceable | Default (Surleybonds) Template Letter | Defaults - background, removal methods, challenges and taking a claim to Court | Digital Signature Guide | Overdrafts and the CCA

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very interesting thread- Iam sure it will be very useful to people

 

- I took the liberty of checking my credit file before starting court action - it was fine - then after action A&L placed several "markers?" not full red defaults on my account - which have damaged my credit rating. has anybody had any success removing these?

 

 

Jan


Please note I am not an expert - I am not offering opinions or legal help - Please use all the information provided on the site in FAQ- step by step instructions and library- thanks Jansus:)

http://www.consumeractiongroup.co.uk/forum/images/icons/icon1.gif

offer from A&L 24/8/07 - after case stayed

 

"What makes the desert beautiful is that somewhere it hides a well." - Antione de Saint Exupery

 

 

PROUD TO BE AN ORANGE

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very interesting thread- Iam sure it will be very useful to people

 

- I took the liberty of checking my credit file before starting court action - it was fine - then after action A&L placed several "markers?" not full red defaults on my account - which have damaged my credit rating. has anybody had any success removing these?

 

 

Jan

 

Hi Jan

I too have quite a few of these on my file and have begun the process of having them removed. I am using a polite and reasonable approach for this with 3 old loans and my current Orange account which have just one late payment marker each. However, I've used the S10/12 Notice for CapOne for a status showing just below default ..:eek:

 

With your case, placing the markers seems to me to be a retaliatory gesture, but how to prove this? I would start by writing a firm but reasonable letter requesting the markers be removed as a gesture of goodwill. Please click on the instant messenger icon underneath my avatar if you would like this letter, or PM me if you prefer to use this method of communication. You can modify the letter to suit your circumstance. Send the letter by recorded delivery.

 

If they don't respond positively to this, then a second letter can be sent (I'm working on this for my own case, so could let you have this if needed later) and then if still no joy you may wish to send an LBA threatening them with action which would be reporting them to the DPA and then the Statutory S10/12 Notice if you wanted to go down this route.

 

HTH Painty x


'Fortune favours the brave.'

 

 

 

 

 

 

 

Any advice given is purely on the basis of my own views and opinions and offered in good faith.

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Thanks Painty - thought I was the only one reading this post for a minute there! ;)

 

I too have had 2 removed using these techniques, (Grattan and OnLine Finance) so they seem to work. Just a case of others trying the same and tweaking the content before we can say it's a solid method.

 

Re: your POC for the Default bits - I know you're still waiting on Court action, but are they similar to mine above?

 

I only found this sub forum yesterday. I've been trawling through the threads in the Legalities forum for a while but had neglected to look in the sub-forums and when I did I found you!!! :D

 

Capital Bank have until next week to respond to my LBA for non-compliance of S10/12 Notice. Then I will a) request enforcement of Notice from ICO (if this will make a difference, I will let you the ICO's response) and b) issue a claim in court. So, I need to start preparing my POC ahead of the N1.

 

One Question: is the fee for the court claim requesting enforcement of Notice going to be £150? I've asked this Q in another forum and had no answer. Of course, the court will tell me but it's useful to know in advance ...:rolleyes:

 

P x x


'Fortune favours the brave.'

 

 

 

 

 

 

 

Any advice given is purely on the basis of my own views and opinions and offered in good faith.

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I can't see why you'd have to pay the fee of £150.00? Depends what you are claiming for, I suppose.

 

If it's straight forward, take a look at the ICO leaflet on enforcing DPA breaches under the "Part 8 procedure", on page 15 here;

 

http://www.ico.gov.uk/upload/documents/library/data_protection/practical_application/taking_a_case_to_court.pdf

 

The more complicated cases are dealt with under Part 7, which is slightly different

 

You might get away with it if you can show "damage" and come up with a monetary amount and commence your claim for that amount, though. (s.13 DPA 1998 - claim damage from increased credit interest rates due to adverse credit incorrectly/unlawfully recorded, for example) That's a dodgy route to take, as your claim may be thrown out - the Court should be able to tell you the best way to do it though.


Always happy to help where I can!

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Advice and comments posted by car2403 are offered purely without prejudice. They reflect only my personal opinion and do not represent the opinion of this forum or it's management. You should always seek legal advice from a qualified legal advisor. As a member of the site team, I disable reputation - reputation points mean nothing, please check my posting credentials yourself and make an informed decision. You shouldn't PM me and await a reply - I may be too late with a response. No replies will be given in Private Messages - just as with getting advice from the forum, getting advice via Private Messages is dangerous. CAG is about sharing successes so others can follow your example, this is primarily why I'm here, so please don't be offended if I don't offer replies in PM that doesn't comply with this. Help CAG to help others by keeping your thread up to date.

 

 

USEFUL LINKS; New User Guide to CAG | Can't find what you're looking for? | Intro to Consumer Credit Litigation | Is My Agreement Enforceable | Default (Surleybonds) Template Letter | Defaults - background, removal methods, challenges and taking a claim to Court | Digital Signature Guide | Overdrafts and the CCA

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very good thread will keep it in favourites for future reference thanks

patrickq1


http://www.consumeractiongroup.co.uk/forum/welcome-consumer-forums/107001-how-do-i-dummies.html

 

 

 

 

Advice & opinions given by patrickq1 are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional

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Excellent work.

 

Quick question, if the adverse info recorded has resulted in you having to obtain credit at a higher APR or having to pay arrangement fee's, are these recoverable from the offending bank.

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In theory, yes, but you'd need to have strong evidence (probably a report from your existing creditors showing the reasons why you are paying a higher rate of interest) and even then the Court can decide that the damage is too remote, if they want.

 

If would make a good basis for removal though, so worth including any of these details on your claim and supporting bundle. It might even get their mind focussed on settling early by opening the negotiations up around default removal if your claim is sound!


Always happy to help where I can!

:lol:

Beware of legal advice given on a private forum - do you REALLY know who is posting? Are they REALLY accountable for their posts? What if you follow their advice and get something wrong?

It was Winston Churchill who said; "Democracy is the worst way to run a country except for all the others"

 

Advice and comments posted by car2403 are offered purely without prejudice. They reflect only my personal opinion and do not represent the opinion of this forum or it's management. You should always seek legal advice from a qualified legal advisor. As a member of the site team, I disable reputation - reputation points mean nothing, please check my posting credentials yourself and make an informed decision. You shouldn't PM me and await a reply - I may be too late with a response. No replies will be given in Private Messages - just as with getting advice from the forum, getting advice via Private Messages is dangerous. CAG is about sharing successes so others can follow your example, this is primarily why I'm here, so please don't be offended if I don't offer replies in PM that doesn't comply with this. Help CAG to help others by keeping your thread up to date.

 

 

USEFUL LINKS; New User Guide to CAG | Can't find what you're looking for? | Intro to Consumer Credit Litigation | Is My Agreement Enforceable | Default (Surleybonds) Template Letter | Defaults - background, removal methods, challenges and taking a claim to Court | Digital Signature Guide | Overdrafts and the CCA

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Are their any threads relating to this, has anyone tried to make a claim?

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Excellent thread - I have several defaults for same sold-on debt which I need to deal with. Also, have read of defaults being re-registered where the original default was 2 or 3 years ago and it keeps being renewed so the 6 years will never expire.:mad:


BANK CHARGES

Nat West Bus Acct £1750 reclaim - WON

 

LTSB Bus Acct £1650 charges w/o against o/s balance - WON

 

Halifax Pers Acct £1650 charges taken from benefits - WON

 

Others

 

GE Money sec loan - £1900 in charges - settlement agreed

GE Money sec loan - ERC of £2.5K valid for 15 years - on standby

FirstPlus - missold PPI of £20K for friends - WON

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Excellent thread - I have several defaults for same sold-on debt which I need to deal with. Also, have read of defaults being re-registered where the original default was 2 or 3 years ago and it keeps being renewed so the 6 years will never expire.:mad:

 

The six years starts from the date of the last payment made or the date of the original default - not repeated defaults, if they are doing this it is illegal and all subsequent defaults should be removed a default is similar to statute barring rules - once the six year mark has gone it can't be reinstated.

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What worries me is the further action section ( Halifax default letter)

 

2.on or after the date shown( 30th Oct),we may take legal proceedings against you and/or instruct a debt collection agency to recover any amount you owe us on your account.

 

Can the debt collection agency be stopped by the methods above as well as the orginal bank? will they resort to sending baliffs round or is there hoops they have to jump through first?

 

yours hijackingly(sorry!)

 

Baslow

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HIYA Jansus !

thanks for the info much appreciated , and thanks for the congrats on winning my own money back where i belongs , 2nd claim being started over the weekend , this is still from the YB, but covers the period of 1987 -2001 inclusive and from 1995 - 2001 this was benefit income only, so am gonna start totting up from 1987 , then I will know what the ACTUAL AMOUNT IS THAT THE BANKS HAVE UNLAWFULLY TAKEN FROM MYSELF AND [edit] BY WAY OF REALLOCATING THE WAY THEY HAD GOVERNED THAT MONEY WOULD BE USED FOR, IT REMINDS ME OF THE OLDEN DAYS WITH [edit] YOU INTO GREEING TO THEIR SERVICES, WHICH YOU THEN WERE UNABLE TO GET OUT OF ........... DOES THIS SOUND FAMILIAR TO ANYONE ELSE ?????, AM NOW GOING TO GET THE DEFAULT CANCELLED ON MY SONS CREDIT RECORD IF NOT I will take the [edit] through court for the removal of this unlawful credit status, THAT WAS APPLIED TO MY SONS FILE BY THE [edit] THEMSELVES WHEN THEY KNEW IT WAS NOT THE LEGAL THING TO DO ..

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excellent post, but why the DPA 1984 (POC)? and the DPA 1998?

 

also, case law is needed and one case that allows £1000 + £default amount as compensation is Kpohraror v Woolwich Building Society - [1996] 4 All ER 119 - see thread here http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/115630-pricing-default.html

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Good information:)


You may receive different advice to your query as people have different experiences and opinions. Please use your own judgement in deciding whose advice to take.

 

If in doubt seek advice from a qualified insured professional. Any advice I have offered you is done so on an informal basis, without prejudice or liability.

 

If you think I have been helpful PLEASE click the scales

 

court bundles for dummies

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excellent post, but why the Data Protection Act 1984 (POC)? and the Data Protection Act 1998?

 

also, case law is needed and one case that allows £1000 + £default amount as compensation is Kpohraror v Woolwich Building Society - [1996] 4 All ER 119 - see thread here http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/115630-pricing-default.html

 

Failure of a Default Notice to be accurate not only invalidates the default

notice (Woodchester Lease Management Services Ltd v Swain & Co NLD

14 July 1998) but is an unlawful rescission of contract which would not

only prevent the Court enforcing any alleged debt, but give the Defendant

a counter claim for damages. (Kpohraror v Woolwich Building Society

[1996] 4 All ER 119)

 

Thanks - I've made these changes to Post #1


Always happy to help where I can!

:lol:

Beware of legal advice given on a private forum - do you REALLY know who is posting? Are they REALLY accountable for their posts? What if you follow their advice and get something wrong?

It was Winston Churchill who said; "Democracy is the worst way to run a country except for all the others"

 

Advice and comments posted by car2403 are offered purely without prejudice. They reflect only my personal opinion and do not represent the opinion of this forum or it's management. You should always seek legal advice from a qualified legal advisor. As a member of the site team, I disable reputation - reputation points mean nothing, please check my posting credentials yourself and make an informed decision. You shouldn't PM me and await a reply - I may be too late with a response. No replies will be given in Private Messages - just as with getting advice from the forum, getting advice via Private Messages is dangerous. CAG is about sharing successes so others can follow your example, this is primarily why I'm here, so please don't be offended if I don't offer replies in PM that doesn't comply with this. Help CAG to help others by keeping your thread up to date.

 

 

USEFUL LINKS; New User Guide to CAG | Can't find what you're looking for? | Intro to Consumer Credit Litigation | Is My Agreement Enforceable | Default (Surleybonds) Template Letter | Defaults - background, removal methods, challenges and taking a claim to Court | Digital Signature Guide | Overdrafts and the CCA

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Hi Chris,

 

the cases you wanted are in your inbox

 

good luck, im subscribibg to your thread with interest

 

regards

paul

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Updated the original post to reflect current, ongoing cases and claims...


Always happy to help where I can!

:lol:

Beware of legal advice given on a private forum - do you REALLY know who is posting? Are they REALLY accountable for their posts? What if you follow their advice and get something wrong?

It was Winston Churchill who said; "Democracy is the worst way to run a country except for all the others"

 

Advice and comments posted by car2403 are offered purely without prejudice. They reflect only my personal opinion and do not represent the opinion of this forum or it's management. You should always seek legal advice from a qualified legal advisor. As a member of the site team, I disable reputation - reputation points mean nothing, please check my posting credentials yourself and make an informed decision. You shouldn't PM me and await a reply - I may be too late with a response. No replies will be given in Private Messages - just as with getting advice from the forum, getting advice via Private Messages is dangerous. CAG is about sharing successes so others can follow your example, this is primarily why I'm here, so please don't be offended if I don't offer replies in PM that doesn't comply with this. Help CAG to help others by keeping your thread up to date.

 

 

USEFUL LINKS; New User Guide to CAG | Can't find what you're looking for? | Intro to Consumer Credit Litigation | Is My Agreement Enforceable | Default (Surleybonds) Template Letter | Defaults - background, removal methods, challenges and taking a claim to Court | Digital Signature Guide | Overdrafts and the CCA

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After a stop notice has been issued and the bank/creditor refuse to take the default off your account - is there a draft POC for the N1 anywhere we can use as a template?

 

Would you add Experian, Equifax etc as 2nd Defendant, 3rd D etc, or just claim straight off creditor and ask Court to make an order under S.14 DPA to order a third party?

 

Cheers

 

Nick

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Nick,

 

There is a template POC on the first post of this thread - I would always advise starting a new thread in the Default sub-forum, outlining your case first, so you can get specific advice on your case. Each case has it's own merits and using a template POC is dangerous, IMO.

 

As for the CRA's, generally they are only "following instructions" from creditors in continuing to process - I'd suggest that you complain to them as part of the process of querying the entire Default, sending them the relevant notices in addition to the creditor. Including them on a Court claim is technically correct, but I've missed them off mine in favour of asking for an order under s.14(3) DPA, where the Court has powers to order the original creditor to stop processing inaccurate data with any third parties - not just with CRA's.


Always happy to help where I can!

:lol:

Beware of legal advice given on a private forum - do you REALLY know who is posting? Are they REALLY accountable for their posts? What if you follow their advice and get something wrong?

It was Winston Churchill who said; "Democracy is the worst way to run a country except for all the others"

 

Advice and comments posted by car2403 are offered purely without prejudice. They reflect only my personal opinion and do not represent the opinion of this forum or it's management. You should always seek legal advice from a qualified legal advisor. As a member of the site team, I disable reputation - reputation points mean nothing, please check my posting credentials yourself and make an informed decision. You shouldn't PM me and await a reply - I may be too late with a response. No replies will be given in Private Messages - just as with getting advice from the forum, getting advice via Private Messages is dangerous. CAG is about sharing successes so others can follow your example, this is primarily why I'm here, so please don't be offended if I don't offer replies in PM that doesn't comply with this. Help CAG to help others by keeping your thread up to date.

 

 

USEFUL LINKS; New User Guide to CAG | Can't find what you're looking for? | Intro to Consumer Credit Litigation | Is My Agreement Enforceable | Default (Surleybonds) Template Letter | Defaults - background, removal methods, challenges and taking a claim to Court | Digital Signature Guide | Overdrafts and the CCA

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Ok great thank for that.

 

Final question, if for example, a DCA has the debt ie say Lowell, but its for someone else, say Cap1 but the default is registered by the DCA, who do you take the Court?

 

The DCA or the original creditor?

 

Cheers

 

Nick

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Depends on the type of assignment - Legal or Equitable?

 

Legal would be the DCA, who assumes the legal rights and obligations of the original creditor.

 

Equitable would be the original creditor, as the DCA is simply "collecting" the balance on their behalf and has no legal rights or obligations.

 

If there are any issues over assignment - such as the assignment process not being followed or documented - you'd have to issue to both and ask the Court to decide on the issue of assignment to say where the obligations under the agreement sit.

 

Again there's no single answer, so start your own thread to get specific advice on your case and the merits of it.


Always happy to help where I can!

:lol:

Beware of legal advice given on a private forum - do you REALLY know who is posting? Are they REALLY accountable for their posts? What if you follow their advice and get something wrong?

It was Winston Churchill who said; "Democracy is the worst way to run a country except for all the others"

 

Advice and comments posted by car2403 are offered purely without prejudice. They reflect only my personal opinion and do not represent the opinion of this forum or it's management. You should always seek legal advice from a qualified legal advisor. As a member of the site team, I disable reputation - reputation points mean nothing, please check my posting credentials yourself and make an informed decision. You shouldn't PM me and await a reply - I may be too late with a response. No replies will be given in Private Messages - just as with getting advice from the forum, getting advice via Private Messages is dangerous. CAG is about sharing successes so others can follow your example, this is primarily why I'm here, so please don't be offended if I don't offer replies in PM that doesn't comply with this. Help CAG to help others by keeping your thread up to date.

 

 

USEFUL LINKS; New User Guide to CAG | Can't find what you're looking for? | Intro to Consumer Credit Litigation | Is My Agreement Enforceable | Default (Surleybonds) Template Letter | Defaults - background, removal methods, challenges and taking a claim to Court | Digital Signature Guide | Overdrafts and the CCA

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