A follow up to previous post on this subject, which had a hearing earlier this week (Monday, before the GDPR on Friday). As predicted here, my application was not successful. Barristers agreed the ICO document was guidance, not a requirement, and the bank advised they would not comply. My Barrister quoted the court of appeal case, saying “can’t report without stating unenforceability of same”. Judge did not accept – they can report what they like until trial or further order. Judge accepted I was late in giving my 2nd witness statement, so I could get representation. I did not advise the bank of my intention to ask for an adjournment while I obtained advice, hence he ordered costs against me of £8.5k. Bank asked for £11.2k Its true I did not advise bank of my application for adjournment (email sent by me to wrong email address), but on the Court form I ticked the box for the Court to advise the bank. I don’t know why the Court delayed until 2 days before the hearing. Seems strange to me I have to pay £8.5k when the court also made a mistake (assuming I had to advise bank, given I asked the Court to advise them). The judge ordered the Barristers to come up with a joint order, which they have done. Despite what the Judge said, in that order, the bank has agreed not to report any alleged default now or in the future, without stating unenforceability of same. Historical defaults remain as is. Hence, way forward seems to be pay the £8.5k costs and leave it at that. In another 6 years (assuming the bank follow the ICO guidance, they may well not) in 2024 it will drop off my credit file. That means it will have been on my credit record for around 12-14years in total by 2024. I don’t think that is the intention of the consumer credit act – but it is how this bank is applying it. BTW, the bank agree they can’t litigate against me as: a) Its passed limitation. b) The evidence they have is not sufficient to litigate. Alternative is to pay Barrister around £65k to litigate further. I don’t have that sum available, so it’s a non starter.

I needed to find a cheap way of stopping the CRA reports of a default and stopping the limitation process. I considered an injunction requesting the bank be prevented from informing CRA’s until a full hearing could take place as a possible way forward. An injunction was issued and the hearing took place on 1 March 2018. The bank was represented by a Barrister and I was LIP. The bank pointed out several serious procedural errors in my injunction document, but the judge gave me leave to fix the issues and re-issue. Overall, I was well and truly “outgunned” by the Barrister. The judge narrow the issues to: A) Did I have a loan? B) If I had a loan, was the agreement correctly or incorrectly executed? C) He had not heard of the ICO guidance. For A) he concluded he was very heavily leaning towards the event I did have a loan. His basis was as the bank stated, they have procedures in place to ensure a loan can only be drawn down when they have the correct paperwork. Most importantly also, the FOS service stated they had seen evidence I had a loan (I have yet to see that evidence). With both these in place, my argument of “no paperwork, no loan” was not likely to be accepted. For B) it was simple, he was leaning towards saying a loan can only be correctly or incorrectly executed. My argument that a third route, of no paperwork no loan, hence you can’t default on something that doesn’t exist was not accepted. The bank agreed it was an incorrectly executed document, but still able to be reported to the CRA’s, and they produced case files showing that – albeit all those cases had either an incorrectly or correctly execute agreement. None covered this situation of no agreement. For C) He had no knowledge of this ICO document. He requested I obtain a copy that was in force at the time the loan was taken out (the current version would not be acceptable) when he would listen to further arguments. Difficult to get, but I now have a copy. The judge adjourned the final hearing and any decision so both sides could obtain more evidence. He would not be the judge at the next hearing as it was not his specialism. I contacted the FOS and asked for a copy of my file – they refused on client confidentiality grounds. I put in a SAR that expired about 3 weeks ago. They keep telling me they will comply using a secure web server for me to access and download from, but so far have not. I have just now asked for paper copies, will then know if they do have technical problems or are just trying to avoid complying with the SAR. Received a further witness statement from the bank in preparation for the second hearing. You may recall I said I did not sign or have any paperwork proving I had a loan (I accept £20k was deposited into my bank account). In any event the branch printer could not print more than the first page of any document to do with me (don’t know why, but it was not a hardware problem). The bank have given an “example” agreement in force at the time of the loan. It clearly required a signature overleaf – i.e. page 2. As the printer could only print page 1, I could never have signed it. So long as the court accepts the branch printer was not able to print more than the first page of the document, I think I have a good case for still saying “no paperwork no agreement.” I am currently trying to raise finance to pay for a Barrister to represent me – should know in around 10-20 days time.

I now have a 2 pronged attack on the go. The first part has been heard and adjourned. Anyone know definitely if it is OK to post here with prejudicing either party? I don’t need further advice at the moment, just for information of others if interested.

Got to admit the bank is not delaying things now, got a reply to my letter dated 25/1/18 to the CEO today. However, they refuse any removal of the late applied default. Reason is I took the matter to the FOS in Sept 2009. FOS found in favour of the bank. Reason it was clear to the FOS I had a moral duty to repay the loan. The legality of the loan was not relevant. So DX100UK, you now have your first example of a bank not removing an incorrectly applied default notice! As I suspected, and a few paid legal advisors have been telling me, this one has to go the court route. I think I need a 2 pronged attack. Maybe pre-main action and then main action? Pre-main action for a court order (or similar) to have the late recorded default removed (then I can get a mortgage on standard terms), then main action for compensation (if any). What does the group think of that, and what kind of county court documents do I need to serve?

Two pronged attack. I will send a polite, short letter to the CEO as you suggest. I will include with that letter a covering note stating limitation is approaching and to avoide delay I have included the pre-action protocol letter. I trhink that covers it both ways.

I don't like wasting 20k, but the main problem is the default, not the costs/compensation, if any.

dx100UK Thank you for your reply. I tried your method (SAR then write to the bank pointing out 2 year "oversight", but as I suspected, they ignored me, same as they have been for the last 12 years. Litigating at least puts things on a timetable - albeit I may not get the result I want if you are correct in that a late default case won't succeed. Compensation whilst nice, is secondary (see post 13). I think the real problem is nobody at the bank wants to "own" the problem, I guess they don't have the time/inclination to wade through the 12 years of correspondence. With a litigation timetable the bank would have to "own" the problem - thats a reason I like it. I agreed in an earlier post you can't win against a bank with a "my stick is bigger than yours" approach. Unless I have missed something, it looks like the end of the road as you all see it?

I have writtewn to the bank - they continue to ignore me, waited 1 month for reply, (just possible they did not get my letter or I did not get the reply).

As stated earlier, I am waiting to re-mortgage at standard rates, I hope before June 2018.

Have now read about 350pages of the SAR - nothing to indicare a loan within the terms of the CCA. In fact, only 1 referance to a loan stating interest rate and term, which is a completed spread sheet page. As the bank agree they don't have sufficient information to proceed against me, I want to proceed against them. Main purpose is to remove the adverse creit entries with CRA's. How do I complete the forms at the County Court, and what forms? I would like the adverse entries removed, can I just ask for that? Compensation (if any) is later.

Thank you, County Court it is. Just added a para to my next draft letter stating its LBA. Thank you for your advice.

The last solicitor issued that 2 Nov 2016. The speed of the solicitors was largely outside my control. But how to issue a court order requesting they comply? What court, County or other?

agreed it is a reason to get them to court (or at least start serious negotiation). The LBA was sent November 2016 - so I guess no problem, unless it had a time limit? Agreed the correct process is required - hence my request on how to start proceedings - even if in a few weeks time. I accept the bank could comply in the next 2 days (Sat/Sun) but think it unlikely, so think I will have to issue.

dx100uk In post 14 at the end you said: "if they fail that [they have 40 days] failure to comply IS a reason to get them into court its a legal document to be complied with. I would suspect that that failure might be your court route, then introduce the compo claim. but lets see." Why have you changed your mind?

Hi, The 40 days for the SAR expires on 17 Dec. They haven't complied yet and assuming they don't comply, around 20 Dec I would like to issue proceedings in court for non compliance - as per end of post 14. I like the court route - limitation is less than 1 year away, and it stops the clock ticking. Questions: Do I issue in the County or other Court? How do I issue (I know about MCOL, but thats a money claim. Here its a non compliance with a legal document/request.). Please remember my main objective is to remove the default, compensation is a secondary, but useful, issue.

I phoned them today. They are saying they can't comply as its too much information and in any event they only keep files for 6 years. They asked what particular information I wanted. I advised it was to do with potential litigation and referred them to the pre action protocol letter sent 2 November 2016, and the bank replied on 21 Dec 2016. They advised I would need to provide the exact date/time of any phone call for them to find the recording of it. They did not routinely record calls and this call was not being recorded. I advised I was recording it, so that was not true. Long discussion with bank advising I was acting illegal by recording and not advising at the start of call. I explained the last time I looked at the law so long as at least one party knew the call was being recorded that was fine. If neither party knew it was being recorded it required a court order signed by the home secretary to record it. No real agreement. Overall, they want to limit the amount of work they have to do. I stated the SAR was for all files, I suggested they provide that. If they introduced a file into litigation that was not in the documents given in response to the SAR, I would call foul. We did make contact, but not much else was achieved. My recording of the call is very poor quality and difficult to hear. Must do better next time!

Received a voicemail to my mobile today, requesting I contact the bank (number given) about the SAR. I deliberately did not put any phone number on the SAR, so they have obtained it from old records - the land line number has changed. I feel it is of no benefit to me to call them. They should reply by post so I have a written record, if they want more information. Question is, am I being too belligerent? I guess we will have to talk sometime.

When (or if in my view) I get a reply to the SAR I will post it here. Thank you for your help so far.

Short answers; 28 May 2009 Unable to provide a copy agreement under a CCA section 77 request. 17 Jan 2013 Insufficient evidence for a reconstructed agreement, hence not possible to issue against me. Before 28 May 2009 for the formal CCA request. Reply dated 28 May 2009. I haven't seen any good will from this bank. They must have a duty of care. I appreciate your work, but please remember the primary aim is to remove the default - compensation, while nice, is a secondary aim. long answers; 28th April 2003. I opened a business and personal account with bank. Normal trading. 9th ?? Nov 2005 – called in for “financial review”. Thursday 10th Nov 2005 £20k loan deposited in my personal current account. 1st Dec 2005. First repayment shown on personal bank statement. 6th August 2007 – written notification they were unable to locate a copy of the original agreement. Sept 2008. I have a screen shot of personal loan interest rate as 8.4% 28 May 2009 – Barrister requested copy of Consumer Credit agreement section 77 request. Bank unable to locate agreement, but gave loan principal as £20k and interest rate as 6.7%, and implied the duration of loan as 7years (no actual duration given). Outstanding balance £12, 484.92. Advised I was still liable for the loan and if I stopped paying it would be reported to CRA’s. 5th April 2011. I advised bank they did not have an executed agreement and failed to see how they could legitimately inform CRA’s without evidence. 21st April 2011. Bank asked me to send them copy of banks letter dated 6th August 2007 and 28th May 2009. I complied. 2nd Nov 2011. The bank advised it would be ceasing to provide me with bank facilities for either my business or personal accounts. Loan statement (they still send them) for period Nov 2013 to Nov 2014 advised the interest rate is 6.52% 9th Jan 2012 letter from bank advising arrears of £8, 620.54. 10th Jan 2012 letter from bank demanding immediate repayment of £20, 213.68. 20th Jan 2012 letter from bank advised outstanding balance as £11, 593.14 17th Jan 2013 letter from bank acknowledges the loan is unenforceable through the courts, stated the debt is still valid and should be re-paid. They requested my financial circumstances (income/expenditure), I did not provide. If I did not provide the requested information they could pass debt to external debt collection agencies.

I understand to have "signed" the consumer credit agreement you must sign in a box (among other things), clearly indicating you are signing an enforceable agreement. I did not. I signed or initialed in the footer area of a single page of a multi page document, the branch printer could not produce the other pages. Hence, no correctly executed CCA exists. I was told at the time I would be sent a copy in the post to sign and return to the bank, within 2 weeks. As it never arrived, I started to chase when I would receive it - to no avail. I wanted to know what I had agreed to. When the bank statements started to arrive I noticed the re-payments were around £300pcm, I was under the impression they would be around £200pcm - had no agreement to prove this, but it gave me another reason to chase the bank. After many years, the bank agreed they did not have a copy of the CCA. The bank eventually agreed they could not produce a re-constituted CCA. Hence they were not able to instigate proceedings against me for the alleged debt. All solicitors have advised the bank will not negotiate with them. Hence, I will have to litigate against them. I have sent a SAR today, they should receive it on 7 Nov - I will check, sent recorded. About 18-20 Dec I will issue against bank (I don't think they will comply, but would be pleased if they do) for either: a) non compliance - your method, as I don't think the bank will comply. Point out they have recorded the default late against ICO guidance. Date extract below. Bank should have issued default around November 2009, not November 2012, agreed? or b) issue requesting removal of default notice or prove I have defaulted. Without any documentation, I don't think they can prove it. I accept a loan was made, just don't know on what terms. If successful I would ask for compensation and costs. 02/03/2009 £297.26 Normal payment. 01/04/2009 £297.26 Normal payment. 01/05/2009 £297.26 Normal payment. June/July 2009 in discussion with bank. They agreed to provide copy of agreement if I resumed re-payments. 03/08/2009 £297.26 Payments resumed as per above. After Sept 2009 no payments made as bank reneged on proving copy agreement. 01/06/2011 £297.26 Bank took payment under set-off rules 01/07/2011 £297.26 Bank took payment under set-off rules No further payments made.

Section 87 - they don't comply. I never signed in a signature box, being just one of many errors. I guess the document I should have signed would have T&C's within? As I have never seen the document, I don't really know. Lets hope your method of removing the default as its beyond limitation works. That will be a big plus. As for damages, the bank default is the only default on my credit file, from around 15 credit entries. My credit card has a 50%APR (approx) compared to the usual 15-18%APR. The additional interest I am paying is a loss. Tell me why I can't claim for that loss. Its similar for other credit. Also special terms imposed on my mortgage, mobile phone etc, as well as being refused another mortgage (lender agrees it was affordable). Numerous others, some in my business. I agree you never win a "my stick is bigger than yours argument" with banks. They have near limitless pocket depth. That road was taken by Solicitors/Barristers who were advising me - 1 of them was a banking specialist solicitor/barrister team. All agreed this was the best route (for who, I hear you ask!)

The purpose of litigation is A)[most important] to remove the default (which you feel is a simple case of obtaining a SAR and point to the ICO rules) and B) damages for loss of ability to obtain credit. It was damages I was asking about, over and above the disputed £12k ish (we couldn't agree exact amount about 5 years ago). The link given clearly states "The six years runs from the "The cause of action" and the terms and conditions of the contract/agreement will have a bearing on this" As the terms of the contract are not known, this cold be a unproductive route, potentially getting nowhere. I will run your method and mine in parallel, nothing to stop that at the present time. It will take me time to work out damages.

Do you have a reference for barring running from last payment? I could see an argument every time bank report it to CRA's that resets the limitation clock? Never denied I had the money - but on what terms? Thats the problem. Nobody knows interest rate, duration and I even have doubts over the amount requested verses deposited, and hence repayment quantum.

I don't think its statue barred. The last major action was in Nov 2012 (default with CRA's) which I discovered in 2013. It will be statue barred in Nov 2018. I am not aware of a precedent for when they record a default, so long as they can prove it - which I think they will struggle with. 3 solicitors and myself have attempted communications. All to no avail. The last solicitors letter was pre action protocol. It took 4 months to get a reply - that only acknowledged receipt and any action would be vigorously defended. Nobody told me they need an agreement to default me. However, if challenged they do need proof of the debt - which they don't have. Seems nobody knows typical damages, so I will just have a best guess and then reduce it a bit. Thanks for comments everyone.

Yes, the default will fall off in Nov 2018. Problem is I want to engage in a mortgage before then - it will be stopped by the default. Hence I want to start litigation to at least remove default - compensation is more a secondary matter. I was aiming to issue myself (LIP), as you say too much money has been spent on legal firms so-far. I have speed read the link you gave. It is not correct in that data is held for 6 while the account is open and 6 years after it has been closed. Have just agreed with the ICO and Experian have removed transaction data older than 6years. I am still considering address information being held longer than 6 years. Thank you for your view.