Default Compensation

[GERMANY2006]

Hello everyone.

 

Got a big one for you. I’ve kept this to myself until now for certain reasons and I still cannot mention the banks name as I don’t want to give the bank any ammunition.

 

Two months ago I had a final hearing to recover COMPENSATION under the DPA 1998 for distress for the unlawful publication of a default, as the majority of the money owed and published with the credit reference agencies were unlawful penalty charges. At the final hearing the judge stated there is evidence to prove the default was incorrect but there should be another final hearing where I should produce more significant evidence to prove the unlawful nature of the charges. If was to prove the charges are unlawful, then that would prove distress.

 

Unlike most peoples particulars regarding recovering penalty charges, my particulars just to prove the unlawful nature are nearly 30 pages long. I have taken into consideration what the Judge has asked me to provide and what District Judge Waterworth who wrote the Approved Judgment in the case of Michael James Gillin v Lloyds Tsb Bank Plc 2007 had observed should be needed.

 

I have given evidence for the contractually agreed service charges, the interpretation of the contract in relation to what constitutes a breach of contract and I have shown the hidden understanding within the contract that the bank understands the law (which we have all been trying to uphold) and that they can only recover the actual losses to them.

I have shown that I adhered to the law and the contract even though I breached the agreement, the breaches were remedied. I have shown the bank set up the agreement in advance with the purpose to force the account to breach in their favour so they could recover hugely disproportionate default sums (legally interpreted as penalty charges).

 

The bank breached the agreement, the bank forced the agreement to breach by levying sums when it suited them, even when there was no breach by myself. For example, charged late payment fee even when I paid on time, charged agreed charges at irregular intervals, so if my account was say £10 under my limit then all of a sudden, interest and various agreed service charges were imposed which put the balance over the limit. I was also charged increased/ double interest after a default was issued which as per the statute law is also a penalty. Section 93 of the CCA 1974 states Interest Not To Be Increased On Default.

 

Once I complained a default was issued and published with the credit reference agency. A default is needed by the creditor before they can recover the sums. S87 CCA 1974. They then used the default to employ various Debt Collection Agencies to threaten recovery of the sums. This is harassment as per section 40 of the Administration of Justice Act 1970, section 1(1) of the Malicious Communications Act 1988 and section 1(1) of the Protection from Harassment Act 1997.

 

So the account was set up with the intent for it to breach in favour of the bank, unlawful charges were levied, the bank was aware what the law stated could only be recovered so they knowingly and deceptively charged penalty fees, they used the law unlawfully to unlawfully publish defamatory information in the form of a default and employ debt collectors to harass me into paying for the unlawful charges.

 

So under section 14 of the DPA 1998 I can have any false information removed from publication if false. This was done in the first final hearing which is why the Judge has organized a second final hearing for compensation under 13 of the DPA 1998. Under s13 2 forms of compensation can be claimed, monetary or distress due to a contravention. The contravention is the false publication, the distress is obviously the fraudulent activities in relation to the default.

 

The amount I have claimed is variable up to £5,000. So if I win (how can I not. I’ve done everything the Judge has asked, I have done everything other Judges have stated as needed, the bank has not put any effort into the fight and as far as I am aware, nobody has gone as far as myself. I have also proved (many times with other claims as well) that the present OFT claim has no bearing with credit card accounts.

 

The hearing date is on the morning of 19th November 2007 at Bournemouth County Court. I believe there is a room especially for the media if any journalists out there want to turn up. If I win, I will have proven fraud by a bank, penalty charges and that anyone who has been levied with penalty charges and had a default published can also claim compensation. I believe around 1 million people have re-claimed their charges, so 1 million times £5,000 is 5 billion.

[alp]

good luck for the 19th!! I am very interested as i too have just settled with barclays.. 1 case cleared all my balance and so clearly the issue of a default was illegal and wrong in that case!!!

 

were all watching !!

[Fully_charged]

Good luck OP....

[pt2537]

Hi,

 

This is of interest to me as i am considering legal action to remove defaults from my credit file

 

looks like i may be making a trip to Bournemouth on the 19th

 

Regards

 

paul

[Curlyben]

...

[GERMANY2006]

Thanks everyone for the support.

 

I'm actually very excited because I've covered every aspect of the evidence needed to support the legal principles, and I've observed many judges final decisions from various claims. This is my 22nd claim and the 12th time I would have been to court. So I'm ready for action.

 

Once the hearing has been concluded, I will post a blog here to fully explain what happened, and I will post the information needed with a full desciption of how to write out the particulars of claim.

 

Thanks again.

[tifo]

Once the hearing has been concluded, I will post a blog here to fully explain what happened, and I will post the information needed with a full desciption of how to write out the particulars of claim.

 

Good luck today!

 

I will also be going down this route soon so any information you can provide in putting together evidence and a POC would be very helpful.

[GERMANY2006]

Hello everyone.

 

OK, have been to court but didn't get compensation because, to claim comp, the bank has to owe you money as well. Section 13(1) of the DPA 1998 states monetary damages and 13(2)(b) states damages for distress as long as there is evidence of monetary loss as well.

 

I gave the basic evidence to the judge regarding the harassing letters that were sent after a default was published by the bank, due to the unlawful charges and he said I did have a claim for distress on that grounds, but as there was no monetary loss his hands were tied.

 

I had previously in another claim claimed my charges, so if I had added the charges claim to this I would have been awarded comp.

 

However, I can still claim for comp for harassment under section 3(2) of the Protection from harassment Act 1997 as section 1(1) was breached and section 1(1)(3) of the Malicious Communications Act was breached and section 40(1)(a) of the Administration of justice act was breached.

 

I have now sent the bank a new Letter Before Action regarding this compensation and will be issuing a court claim in two weeks.

 

Also I have another claim similar to my recent court hearing claim where the bank DOES owe me money for charges. So the judge will be able to act.

 

The acting solicitor on behalf of the bank tried to get her fees paid for but as we all know, neither side can claim for the others legal fees in a small claims court.

 

I'm not miffed at not getting comp because I now have a stronger claim and know what I need to do for my other claim.

 

I will keep adding all new info to this blog over the comming months.

 

Thanks.

[GERMANY2006]

Sorry, I mentioned 13(2)(b). I actually ment 13(2)(a).

 

Thanks.

[tifo]

OK, have been to court but didn't get compensation because, to claim comp, the bank has to owe you money as well.

 

The acting solicitor on behalf of the bank tried to get her fees paid for but as we all know, neither side can claim for the others legal fees in a small claims court.

 

I didn't know this.

 

So if you pay an account in full and the bank carries on defaulting you, there is no claim you can make for damage and distress?

 

Similarly, if a company defaults you for no reason having never been a creditor, there is nothing you can claim?

 

I ask the above because i have claims with both scenarios and was thinking of issueing a claim for each, using the FOS guidelines of £1,000 for non-financial loss relating to a default as well as common law. I cannot show monetary loss because i have lawful defaults as well as unlawful ones and CCJs so don't apply for loans, credit etc as i know it will get turned down anyway.

 

If i don't get compensation it means the bank can default me at its heart content and i cannot make a claim.

 

Also, i thought if you lose a case you bring you can be liable for the other party's costs?

 

The problem with claiming compensation as well as charges is that the whole case will be stayed as per test case.

[GERMANY2006]

Just to add further. My default was removed and my balance was wiped out.

 

If anyone goes down this route, make sure that the bank ows you more than you owe them. This will amplify your claim.

 

You need the usual evidence to prove unlawful charges but you definitly need to show that the contract defines going over your limit, not paying on time as a breach and that a breach is in default of the agreement. I discovered that in the contract (like so many others) the bank states if they are in breach to you, they will only be liable for reasonable costs, yet they clearly charge us massive unreasonable fees. This aspect shows intent to comit fraud as they understand the liquidated damages laws but breach them to gain profit. By adding this to your claim you can prove obtaining a pecuniary advantage under section 16 of the 1968 theft act. This amplifies all penalty charges claims.

 

Also add a sequence of account events to show you made payments but the bank kept adding charges. This is to show what the charges were for.

 

Add your manual and automated interventions and relate them to every breach.

 

This is how you pile on the pressure and amplify your chances of success.

 

Also, in court no less than 4 times now I have proven the present OFT case has no bearing on credit card claims as this was dealt with by the OFT in April 2006.

 

Also obtain newspaper stories off the net of suicides due to massive accumulation of penalty charges. There are many stories you can download in relation to your bank. This will embarrass the bank, show the ultimate effects of the banks actions and that it is not an isolated incidence.

[tifo]

DPA 1998 c.29

 

13. Compensation for failure to comply with certain requirements

 

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

(2) An individual who suffers distress by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that distress if—

(a) the individual also suffers damage by reason of the contravention, or

(b) the contravention relates to the processing of personal data for the special purposes.

 

Nowhere does it say in there that the bank must owe the claimant something as well. I'm confused

[GERMANY2006]

Helo tifo.

 

There definitly has to be a monetary loss that is due to you (penalty charges,PPI,interest after a default etc) if you want to claim compensation for distress. If a default consists in any [part of default charges then you can have the default rectified. I had a claim against Black Horse where I wanted the default removed but they omitted the penalty charges from my account just before they entered their defence so the penalty charges issue would not be raised, otherwise I had evidence to prove unlawful charges and believe me, the banks do not want an approved court jugement stating that they charge penalty charges because the OFT will investigate as it is fraud. This is why some people have been paid off huge sums to disaude them from going to a final hearing.

 

A bank can default you if you do not pay the agreed repayments, but if you have evidence of penalty charges you can cause them massive grief. Also, have you tried a Consumer Credit Act s77/78 request (written specifically as s77/78) to gain your signed credit agreement. I have been to court twice over this. Firstly if a bank or any creditor does not supply you with a COPY of a credit agreement that YOU signed, you don't legally owe them any money until they supply you with one. I proved this in court. Alsi If you also have a default, then they have committed an offence (this offence can only be dealt with by the OFT FOS though not a ccourt). Then as per the statute law in the case of Wilson v. Secretary for Trade and Industry (available all over the net and this site) you are legall obliged to keep the money/ goods you have borrowed and have all monies plus interest on each individual ammount refunded in ful. I have been to court to prove this and was awarded full recompense. I am presently doing it another two times with other creditors.

[GERMANY2006]

Helo tifo

 

S13(2)(a) damage is the legal way of stating monies. Entitled to compensation from the data controller for that distress if- (a) the individual also suffers damage by reason of the contravention.

 

2(b) relates to the special purposes which is for artistic, journalistic etc.

[tifo]

thanks germany2006,

 

what i pasted there was the DPA s.13 from the opsi website.

 

are we looking at different DPAs?

 

could you look at my post above (#10) and let me know if i have a claim?

 

FYI, i have received compensation from the FOS for unlawful default processing where they continued to do so after settlement. This was for 'damage and distress'. Maybe they work differently.

[hellhasnofury]

Helo tifo.

 

There definitly has to be a monetary loss that is due to you (penalty charges,PPI,interest after a default etc) if you want to claim compensation for distress. If a default consists in any [part of default charges then you can have the default rectified. I had a claim against Black Horse where I wanted the default removed but they omitted the penalty charges from my account just before they entered their defence so the penalty charges issue would not be raised, otherwise I had evidence to prove unlawful charges and believe me, the banks do not want an approved court jugement stating that they charge penalty charges because the OFT will investigate as it is fraud. This is why some people have been paid off huge sums to disaude them from going to a final hearing.

 

A bank can default you if you do not pay the agreed repayments, but if you have evidence of penalty charges you can cause them massive grief. Also, have you tried a Consumer Credit Act s77/78 request (written specifically as s77/78) to gain your signed credit agreement. I have been to court twice over this. Firstly if a bank or any creditor does not supply you with a COPY of a credit agreement that YOU signed, you don't legally owe them any money until they supply you with one. I proved this in court. Alsi If you also have a default, then they have committed an offence (this offence can only be dealt with by the OFT FOS though not a ccourt). Then as per the statute law in the case of Wilson v. Secretary for Trade and Industry (available all over the net and this site) you are legall obliged to keep the money/ goods you have borrowed and have all monies plus interest on each individual ammount refunded in ful. I have been to court to prove this and was awarded full recompense. I am presently doing it another two times with other creditors.

 

Hello Germany

 

Your thread is so informative and I thank you. I feel that you have just given me the spark to relight my fire. I have become rather dispondant of late, due to certain companies in their non-compliance and ignoring my letters.

 

I may come back to you for advise and assistance if that is ok. I have to try to digest and absorb the information that you are giving.

[tifo]

I have done a s.78 to a DCA who have not complied with this request so i am not paying them anything. The second DCA that is managing the account defaulted me 2 times, despite never being the legal creditor at any time.

 

As they don't owe me any money, does this mean i cannot make a claim and they get away with this? They have admitted their breach of the DPA in writing to me and to the ICO.

 

I settled accounts in full but the bank carried on defaulting me. As they don't owe me any money now, do they get away with their defaults?

 

Again all this seems unfair for the consumer.

[pt2537]

Then as per the statute law in the case of Wilson v. Secretary for Trade and Industry (available all over the net and this site) you are legall obliged to keep the money/ goods you have borrowed and have all monies plus interest on each individual ammount refunded in full.

 

Hi Germany 2006

 

i am slightly confused by this statement,

 

in Wilson -V- FCT in the House of Lords, mrs Wilson was refunded the monies paid for the return of her car.

 

this was because she lost the first case in the Kingston upon Thames County Court, since she lost the case she paid £6,900 to redeem her car.now then she went to the court of Appeal and won her case, the judges SIR ANDREW MORRITT V-C, CHADWICK AND RIX LJJ awarded her the return of the monies paid

 

this is an extract from this case

 

6. The appeal was heard in November 2000, shortly after the Human Rights Act 1998 came into force. The Court of Appeal, comprising Sir Andrew Morritt V-C, and Chadwick and Rix LJJ, allowed Mrs Wilson's appeal: see [2001] QB 407. Sir Andrew Morritt V-C recognised there was considerable force in First County Trust's submissions in support of the judge's

view. But having analysed the statutory provisions, the court held that the £250 added to the loan to enable Mrs Wilson to pay the document fee was not 'credit' for the purposes of the Consumer Credit Act. So one of the prescribed terms was not correctly stated. In consequence the agreement was unenforceable. So also was the security. First County Trust was ordered to repay the amount of £6,900 Mrs Wilson had paid the company after Judge Hull's judgment together with interest amounting to £662. The overall result was that Mrs Wilson was entitled to keep the amount of her loan, pay no interest and recover her car.

 

 

Mrs Wilson never paid anything towards the loan from FCT itself, and the Lords when looking at the issue of unjust enrichment considered that it was not possible for a debtor to recover monies paid.

 

 

so my question has to be , what provisions are you using of this judgment to recover the monies paid

 

i am a little confused so it would be good if you could clarify this

 

thanks

 

Paul

[GERMANY2006]

Hello tifo.

 

Ok, if you have paid off an account in full but the bank continues defaulting you then you can have the default cancelled under section 14 of the DPA 1998. If you are owed any money from the bank and can prove distress then you can claim compensation, but you have to prove there is money owing (say for 1 penalty charge, 1 PPI payment after time, interest charged to you after a default was issued with the Credit Reference Agencies, or any charge that you can prove was wrongful, then that will prove you are owed money. Proving distress is harder. If a bank sends you any letters stating you owe them money when you don't (ie, for a sum that includes penalty charges, the more the better) then you can call that harrassment. You can prove distress if you get turned down for a loan, credit card etc as the default will be the cause. A default is a black mark. It is defamatory, especially if you no longer owe that money. A default is a publication for others to use to judge your credit worthiness and financial liabliity. Getting turned down for credit is easy. You just apply but state all the general negative facts that gives you a negative scoring. The application will be turned down and a letter sent to you through the post stating you can find out the reason you were turned down by requesting your credit ref file. On it will be the default. Hey presto 'distress'.

 

If a company defaults you when they have never been a creditor sounds like harassment. You can only be defaulted if you owe outstanding money after not adhering to a credit agreement. That sounds like harrassment under section 1 of the Protection from harassment act 1997.

 

Also a small claims court is governed by the Crown Prosectition Rules under rule 27 which states certain things a party can claim of the other. Legal fees can not generally be reclaimed off either party. There has to be exceptional circumstances.

 

DATA PROTECTION ACT 1998

Compensation for failure to comply with certain requirements.

13. -

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

(2) An individual who suffers distress by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that distress if-

(a) the individual also suffers damage by reason of the contravention, or

(b) the contravention relates to the processing of personal data for the special purposes.

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

 

Rectification, blocking, erasure and destruction.

14. -

(1) If a court is satisfied on the application of a data subject that personal data of which the applicant is the subject are inaccurate, the court may order the data controller to rectify, block, erase or destroy those data and any other personal data in respect of which he is the data controller and which contain an expression of opinion which appears to the court to be based on the inaccurate data.

(2) Subsection (1) applies whether or not the data accurately record information received or obtained by the data controller from the data subject or a third party but where the data accurately record such information, then-

(a) if the requirements mentioned in paragraph 7 of Part II of Schedule 1 have been complied with, the court may, instead of making an order under subsection (1), make an order requiring the data to be supplemented by such statement of the true facts relating to the matters dealt with by the data as the court may approve, and

(b) if all or any of those requirements have not been complied with, the court may, instead of making an order under that subsection, make such order as it thinks fit for securing compliance with those requirements with or without a further order requiring the data to be supplemented by such a statement as is mentioned in paragraph (a).

(3) Where the court-

(a) makes an order under subsection (1), or

(b) is satisfied on the application of a data subject that personal data of which he was the data subject and which have been rectified, blocked, erased or destroyed were inaccurate,

it may, where it considers it reasonably practicable, order the data controller to notify third parties to whom the data have been disclosed of the rectification, blocking, erasure or destruction.

(4) If a court is satisfied on the application of a data subject-

(a) that he has suffered damage by reason of any contravention by a data controller

1

of any of the requirements of this Act in respect of any personal data, in circumstances entitling him to compensation under section 13, and

(b) that there is a substantial risk of further contravention in respect of those data in such circumstances,

the court may order the rectification, blocking, erasure or destruction of any of those data.

(5) Where the court makes an order under subsection (4) it may, where it considers it reasonably practicable, order the data controller to notify third parties to whom the data have been disclosed of the rectification, blocking, erasure or destruction.

(6) In determining whether it is reasonably practicable to require such notification as is mentioned in subsection (3) or (5) the court shall have regard, in particular, to the number of persons who would have to be notified.

[tifo]

If a company defaults you when they have never been a creditor sounds like harassment. You can only be defaulted if you owe outstanding money after not adhering to a credit agreement. That sounds like harrassment under section 1 of the Protection from harassment act 1997.

 

OK, i get that bit.

 

In their conclusion, the Information Commissioners Office advice me to make a claim under s.13 as they themselves do not punish companies but the breach did occur.

 

If i cannot use s.13 to get compensation for a breach of the Data Protection Act, this would mean DCAs/banks can go around defaulting anyone they like and when caught correct the info, then hey presto ... no claim against them?

 

its the first i've heard that the Protection of Harassment Act 1997 can be used for unlawful defaults. Would this also apply to a bank that carries on defaulting despite not owing any more money to them?

 

the Act states 'person' so can it be used against a business or would the Data Controller be liable?

 

i was about to send my LBA this week and issue a claim within 3 weeks but your posts here have stopped me in my tracks

 

if i issue a claim for charges as well as default compensation would i have to show actual loss or use common law precedents for the sum asked and is the case likely to be stayed in full or just the charges part of it (these are for credit cards).

 

[pt2537]

Hi Tifo,

 

i ahve the PFHA 1997 on my pc, if you want a copy PM me an email address and i will send it to you

 

regards

paul

[diskmandave]

I have been to court to prove this and was awarded full recompense. I am presently doing it another two times with other creditors.

This sounds like deliberate debt avoidance bordering upon fraud.

 

The CAG does not condone or support these kind of actions.

[GERMANY2006]

Hello pt2537

 

The paragraph needed is para 29- This states that unless there is an agreement signed by the debtor, the court has no power to enforce the debt.

 

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 and 63, section 127(4) precludes the court from making an enforcement order.

 

Para 6 goes on to state-

 

So one of the prescribed terms was not correctly stated. In consequence the agreement was unenforceable. So also was the security. First County Trust was ordered to repay the amount of £6,900 Mrs Wilson had paid the company after Judge Hull's judgment together with interest amounting to £662. The overall result was that Mrs Wilson was entitled to keep the amount of her loan, pay no interest and recover her car.

 

As one of the prescribed terms was not correctly stated the court had no power to enforce the debt. Mrs Wilson had legal lien over the money as she had taken delivery of it, meaning she had taken possession and ownership of it, the payment was to be made under an agreement, but the agreement did not contain all the prescribed terms so could not be legally enforced, therefore the couty court claim was overturned and Mrs Wilson got back the money she had been ordered to pay for her loan and got to keep the money she had borrowed. The first claim was in the county court which had no bearing, but the appeal is now statute law.

 

Its like walking into a shop, if you want to buy something, you only take delivery once you have paid, but in a credit contract it is different. Payment is made under a contractual agreement. No legally binding agreement, then you don't have to pay and if you have already taken possession, then the lien is yours. Any monies paid onto a unenforceable agreement, you are entitled to recover, as there is no proof that you have to pay. A Subject Access Request is the correct and legal way to prove you paid money onto an account and if the creditor submits any evidence stating they accepted the money, but can't prove a legal agreement then theres your evidence for the return of the money.

 

A Consumer Credit Act 1974 Section 77/78 request is the best way to prove if the creditor has a copy of the agreement on file.

[tomterm8]

Hello tifo.

. It is defamatory, especially if you no longer owe that money. A default is a publication for others to use to judge your credit worthiness and financial liabliity

Remember, in the case you quoted, the court found in fact that the credit agreement was unenforceable, NOT VOID. consequently, the courts find they can not ENFORCE the debt... rather like they can not enforce a gambling contract. it doesn't mean such a debt doesn't exist, or "you no longer owe that money". Further, in fact, there is a legal presumption that you are bound by the debt until a court finds that you are not so bound.

 

If a company defaults you when they have never been a creditor

They have always been a creditor. they are, and remain, a creditor. the agreement is not void, it is unenforceable.

 

sounds like harassment.

Nope.

You can only be defaulted if you owe outstanding money after not adhering to a credit agreement. That sounds like harrassment under section 1 of the Protection from harassment act 1997.

harassment has nothing whatsoever to do with filing a default.

 

 

 

Also a small claims court is governed by the Crown Prosectition Rules under rule 27 which states certain things a party can claim of the other. Legal fees can not generally be reclaimed off either party. There has to be exceptional circumstances.

95% of cases under the data protection act I've seen have been dealt with at fast track, or multi-track level.

 

I think, frankly, your advice is dangerous, wrong, and misleading.

 

 

.

...

[tifo]

Hi Tifo,

 

i ahve the PFHA 1997 on my pc, if you want a copy PM me an email address and i will send it to you

 

regards

paul

 

thanks, i have a copy from opsi and there's a link to it in the library.

 

it's only a short act though at some 9 pages?