Hi guys, There are many arguements regarding the removal and questioning of defaults. My question is that recently many feel this is directly linked with no further enforcement by the creditor as a punishment etc... Now if a creditor is aware of an impending IVA and slap a default on your file (as the Information Commissioners Office tells them too! http://www.ico.gov.uk/upload/documents/library/data_protection/detailed_specialist_guides/default_tgn_version_v3%20%20doc.pdf page 17). Now does this mean that the debtor cannot challenge the legality of the defaults in the sense that they were either not supplied or not in the prescribed format. Does it mean that you cannot challenge the fact that the lender has no enforceable agreement and so default should never have been created, OR due to the inclusion in the IVA a Court has sealed the debts and so they are acknowledge without the ability to challenge anymore? REMEMBER an IVA is a voluntary arrangement BY the debtor with the creditors so, in my view the creditors NEVER tried to enforce the debts... Views would be appreciated, Penfold

Hi Bobby, If it is a loan, why not simplify this by CCA ing them instead, plus you have to get a response within 12 +2 days rather than 40. This means you can (assuming you get no response...timing is everything) send the CRA's a copy of the letter and proof of posting and the fact they did not respond...They then need to verify this and 28 days later, you could....and should be entry free... Now that's living in the clouds, but worth a shot first...after all the agreement is all you are after not all the other junk they have on you isn't it? Penfold

Hi guys, A friend asked me to help him as MBNA have written stating they are increasing his interest rate on two of his credit cards with them. Is this legal and are there any threads on here already discussing as I could not see any on a quick scan before work... Thanks, Penfold

I don't know if anyone has seen this yet and sorry if you have, but this looks promising... BBC NEWS | Business | Bank plans for overdraft refunds Penfold

Excellent thread and good luck, Penfold

Hi Sparkie, Long time no speak eh? Well it really makes me laugh that one can take a company to Court, because they are not answering direct queries on an account and then you get there and the Court does not push the matter... You remember what happened to me trying to investigate the Nat West accounts and ending up with £1000 in Court costs... I'm sorry to hear what happened to you, but we will no doubt keep up the fight in other ways eh... All the best Penfold

I am confused about something, but am sure it is just an error on the Court letter, but post 70 says on hearing the CLAIMANTS SOLICITORS and defendant in person? Should this just be the other way around? You did not have counsel did you? Penfold

Has anyone else taken a CRA to Court? Do we know of any results as yet? I am waiting for my last Letter Before Action to be answered, then I will SAR them, then I will go for CC action. Good luck UK26

Jesteruk, That is exactly my point, why are they asking for info that they should have investigated in full on initial complaint! Mind you I feel they should be checking ALL info before blindly adding things to peoples files... Penfold

On a side note here, as Data Controllers the CRA's have an obligation to ensure info is correct, legal and accurate as has been stated before. Did you not write and query things with Experian before starting court action? If so they should already be aware of what you are disputing should they not and so why are they asking for this again? Only my two bit... Good luck and watching with interest... Penfold

The IVA contains (usually) various debts. The IVA people are usually Insolvency Practioners and so the letter should go to the Creditor first. If they respond there is no agreement etc then that should go to the IVA people. NOTE: Even if nothing is produced the best case is that part of his debt will be wiped out, but the rest will still exist and payments passed on pro rata to the other creditors...You cannot just walk away or get out of an IVA....Sorry I have had one...I got out by offering a full and final settlement which was accepted... Penfold

that was a great post above Banker, I cannot comment on the economical viewpoint, but from the mortgages viewpoint i can say this... Lenders (if they pass the rate cut across in the first place) will find an alternate way to get it back, whether via arrangement fees or in their increased admin fees etc. Here is what IGroup and First National have said: "Following the coordinated action by Central Banks today, where the Bank of England rate decreased by 0.50% to 4.50%, we can confirm that the Barclays Bank base rate has also been decreased to 4.50%. Whilst our variable rate products and reversionary rates are linked to Barclays Bank base rate, this is currently not a true reflection of funding costs. As it is likely that these conditions will persist for the immediate future, our variable rates published prior to this reduction will be maintained in our new 4108 rate card by adjusting the rate we charge above Barclays Bank base rate. These rates are effective Thursday 9th October 2008. Fixed rates will not be impacted." Basically reducing one end but upping the other..Nice eh? The rate cut will also slow the repos down a bit, but there will be tears in the end as more and more people will find themselves unable to keep up with the escalating prices. The rate cut is dead against what the BOE wanted to do as their concern was the rising inflation rate and so this is (IMHO) a short term sweetner and not any real sort of solution. The Banks lending criteria is what needs to be addressed after all with house prices dropping hardly anyone can get the "good deals" as their loan to values are going up everyday! Oh well change of employment for me and quick... Penfold

But my point to continue to full hearing rests (albeit hopefully) on point 108 of the transcript, which states “It is agreed that the conditions I have considered are representative of other conditions used by HSBC in 2001 and thereafter, and the order that I make should reflect this”. Is it not worth a try? Penfold

Hi, I was an HSBC customer and in the transcript above the Judge mentions he looked at the T&C's from 2001 and I believe my accounts were pre this date (in fact just checked and was 1997!). Can I appeal to the Court to lift my stay on the basis that my account t&c's are not covered in the test case? Just trying to find a way to lift my stay, but thought it may be worth inviting some responses...(if only in hope...) Penfold

Latest Update, time for Court Action, I got another letter back just stating the data is correct etc and that's that. Fair enough then I have tried for over a year to rectify this and they are not playing ball. Penfold

Morning guys, Long time no hear... Well, the stay with HSBC has now come to an end and they have written to the Court to extend it, however, on ringing the Court it appears they have not got that letter. The Court advised me that they are waiting to hear from either party as to whether it is proceeding or not...I find that unbelievable as surely the file should be linked to the date to automatically go back to the Judge, but then hey that's our Legal system I guess. So what should I do? I guess I should just write again the same stuff I wrote before regarding the stay ending and no obvious solution on the horizon and so I wish to proceed to a full hearing? The Court Manager RE: Claim number XXXXXXX Issue Date: XX July 2007 Dear Sir/Madam, We are aware that the stay placed by the Court has now expired. We received a letter from the Defendant's solicitors explaining they will be applying to extend the stay once more. As far as we are aware HSBC have still failed to defend any case in the courts and that they have been using the court process to extend and delay the period of time within which they deal with these matters satisfactorily. This is surely against our Human Rights to have this dispute resolved expeditiously? Personally, we believe that HSBC is merely continuing its abuse of the legal system, like so many other banks and we humbly ask the Judge to throw out this application to extend the stay. We are also aware that many Banks are still using the Office of Fair Trading Test Case as another excuse to issue a stay against cases in the County Courts, however, Mr. Justice Robert Smith agreed that the OFT could rule on the fairness of the charges. So a precedence of sorts has already been achieved. We will this again is merely HSBC’s attempt to stall the legal system. The Claimants believe the proposed directions will further the Overriding Objectives in that they identify the most fundamental issues in dispute (as detailed below), and allow them to be assessed in advance of any hearing so that this claim may proceed justly and expeditiously. The crux upon which this claim rests is the true loss suffered by the Defendant as a result of the contractual breach from which its charges arise. If the Defendant cannot substantiate the cost of each charge as proportionate to its loss incurred, it has charged contractual penalties contrary to the Unfair Terms in Consumer Contracts Regulations 1999 and common law principles established since the early 1900's. In the event that the Defendant's charges were accepted as being a fee for a service (which is refuted), examination of its true costs is required to determine whether the price is reasonable as required by the Supply of Goods and Services Act 1982. The Claimant believes that if the Defendant has the serious intention of defending this claim at trial as is indicated by its defence, that it is incumbent on it to disclose such information. Further, the proposed directions are already routinely ordered in claims of this nature in the Mercantile Court in London, as well as in small claims track cases in Leicester, Derby, Chesterfield, Northampton and Mansfield County Courts. As the law relating to contractual penalties is long established, the Claimant believes the outstanding issues to be of fact. Accordingly, the Claimant respectfully requests that this claim be allocated to the small claims track, and estimates that the hearing of the claim should last no longer than one hour. Yours faithfully, enc: Draft Order Draft Order for Directions 1. The Claimant shall within 7 days of service of this order send to the Defendant and to the Court: a) A schedule setting out each charge repayment of which is sought, showing the date, amount, and reason given (if any) for that charge being made; b) Copies of any statement or other document relied upon as showing that each and every charge has been made; c) A statement of evidence of all matters relied upon as tending to show that the charges are irrecoverable as penalties or otherwise; d) Copies of decided cases and other legal materials to be relied upon. If the Claimant fails to comply with this order, the claim will be struck out without further order. 2. The Defendant shall within 7 days thereafter file and serve a response to the Claimant's schedule, stating in respect of each item claimed; a) Pursuant to what contractual provision such charge was made, producing a copy of the contractual document relied upon; b) Whether such charge is accepted to be a penalty, and if not why not; c) If such charge is alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions (whether or not such action is treated as a breach of contract between the parties), all facts and matters intended to be relied upon as showing that such was a proper estimate of such loss, and all evidence to be adduced at trial as to what the true cost of dealing with the matter was; d) If such charge is not alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions then facts and matters intended to be relied upon showing the basis upon which the charge was calculated and all evidence to be adduced at trial as to show that the charge was fair and reasonable. e) Any witness statements. f) Copies of decided cases and other legal materials to be relied upon. If the Defendant fails to comply with this order, the Defense will be struck out without further order.

Just waiting for Bankfodder, but I think that is the direction this is heading in....

Equifax wrote back to say they are looking into it and if they get no reply etc Eversheds wrote back to say they have already explained previously, no new explaination or proof. Penfold

Hi, A friend of mine asked me for advice on this and I do not honestly have a clue... Basically he and two others took a business loan out many years ago (more than 6 years prob around 10) and they signed personal guarentees. The business went belly up more than 6 years ago and the business was dissolved. THey have been paying a token payment each month since then. Suddenly NatWest have decided to sell this off (I assume) as a DCA has started ringing talking about a deal to settle this, which they have no intention in doing as the current token payments suit. Does the CCA apply here or what legislation does this come under? Any info would be appreciated, Penfold

When we settled our IVA last year we got the IP to earn their money and organise the deal, which they did and to our terms as well... I think it is really down to the IP people choose. We searched and found a local one (who charged us) but was obvious from the start were on our side. The IVA worked out very well for us and given the now fall in house prices we are very happy with our decision to do it. All the best, Penfold PS Since ending the IVA I discovered that most creditors had written the money off anyway and are grateful for whatever little they actually get...

sorted it out now, thanks for answers. Do we have any idea of timescale on the old bank charges now? Any ideas or hopes guys...

Fair enough, I'll call her and say i want an answer today or I withdraw the offer as I gave a much lower on the basis of a quick settlement.

Nope it was on Friday morning and they have not come back to me as yet and I was told should not be a problem and she would get back to me soon. I expected them to respond at least by Monday afternoon, which they did not. I think a letter should do the trick and stating that their lack of a swift response to resolve suggests they are being vexatious defendants with no interst in avoid protracted litigation...

Hi all, Things really seem to be draging with the old bank charges don't they? Oh well I guess we'll hear when we do.... On a side note, does anyone know what the deal is with a verbal offer of settlement? If I suggested a settlement and they (this is not bank charges now) do not get back to me quickly, can I withdraw it? Should I write and tell them that it is no longer acceptable and what I now expect? Or I've offered and I have to stick to that?

They did not even reply...I am looking into how to proceed at the moment and waiting for a response from a CRA before I do anything. Penfold