Default Removal - katenandpete v HSBC **WON**

[kateandpete]

Hi K & P

 

You can continue arguing the no permission point as the contract was obviously terminated. However, I'm not entirely sure of the strength of this argument or how it would stand up in court. It seems the Information Commissioners Office are using the legitimate purpose argument as their justification for processing data. Again I don't think their is much strength in this argument.

Yes this is the paragraph 1-4 thing (but not 6). I agree with your sentiments, but I still feel the default was wrongly applied in the first place.

Did you not get a letter stating that they were calling the debt in if you did not bring the account up to date?

No.

If not how did you come to the payment arrangement?

At the time we were temporarily living in the United States. HSBC had our US address as a temporary address. I was receiving statements and posting a cheque for the minimum payment each month. With hindsight this was foolish as post was delayed unpredictably and sometimes went missing. I didn't receive statements for a couple of months and being busy with other things forgot to send estimated cheques. Eventually I did receive a statement, which said I had outstanding amounts on it. I phoned them up and they said I had to increase my monthly payments. I offered to pay £50 per month by cheque. They said this would be acceptable and called this a special arrangement.

 

At a later point (while we were still in the States), three of my £50 cheques went missing. I was in contact with them quite a lot about this, but stupidly have kept no phone records. It took many months for them to find the payments - they had been credited to other people's accounts (even though I had written the account number on the cheque. Eventually they were found.

 

No mention of default was made on either occasion. No default notice was received. Looking at the date of the default on the CRA files, it is more likely that it was the first of these two occasions that the default was registered

 

The difficulty with this point is they are not obliged to supply a true copy of the default notice under the CCA. However, if you proceed to court they would need to prove that they sent one.

Yes, I've seen this brought up in other threads.

 

You could perhaps also argue on the grounds that continuing to process the data for 6 years is excessive and therefore in breach of sch 1 para 3,5 & 6 of Data Protection Act. Particularly if you feel your finances are now in order and the defaults occured as a result of particular circumstances which are unlikely to be repeated.

This is true and I could argue this. But I maintain that the default was improperly registered in the first place.

 

They have done this on the sly, without giving me opportunity to rectify the situation.

 

Another valid point is that there were £80 of penalty charges on the account when they defaulted me for £96. I also feel that, as I am unable to obtain a mortgage for the next 4 years - all for the sake of miscommunications, this is a disproportionate punishment. Nevertheless, I don't really want to argue these points as it should never have happened in the first place.

 

I'm not sure if the Regulations have been superseded. Regulations are so difficult to track down! You could always make an enquiry with Trading Standards as they should have all up to date Regulations created under the CCA.

That's a good idea. Thanks!

[kateandpete]

I just think we have more chance of success in removing defaults from settled accounts than from accounts that continue to have money owed.

I am only not paying them because I don't believe they are acting reasonably in not removing the default. I have made them a very fair offer - which they have refused.

You could argue that it would be better (not sure for who though!) if the lender went to a court for a judgement - that way the debtor has the chance to explain the circumstances whereas a 'default' is issued without challenge.

I agree 100%.

[kateandpete]

OK. For better or worse I have sent this to HSBC. Thanks to zootscoot, peterbard and Number6 for help with this.

LETTER BEFORE ACTION

Unenforceable Account Number: XXXX XXXX XXXX XXXX

 

I am writing in response to your letter dated 12th October.

 

I would appreciate it if you would address me correctly. My title is “Dr.”, rather than “Mr.”.

 

I note your comments with regard to agreement discard procedures.

 

I reject the counter-offer you made as no effort has been made to comply with my conditions.

 

You assert that you have complied with my Consumer Credit Act 1974 (the 1974 Act) section 78 request for a copy of my executed agreement. You attempt to use Regulation 3 of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (Statutory Instrument 1983/1557) to substantiate this. This appears to be a major loophole in the Consumer Credit Act 1974 for reasons I set out in my letter of 25th September. The relevant Government departments and Members of Parliament have been contacted with regards to this point. It is my opinion that you would have to produce a true copy of the executed agreement, including signature, if you were to attempt to enforce the agreement in court. Therefore I still consider the agreement to be unenforceable. Clearly we disagree, I suggest we allow a judge to rule on this point.

 

Below, I set out two sets of arguments in order of importance. The first will be applied in the event that a judge rules the agreement enforceable, the second in the event that a judge rules the agreement unenforceable. In either case, the conditional offer I made in my letter of 25th September still stands as full and final settlement of the debt. I believe I am under no obligation to offer any payment whatsoever at this stage. Nevertheless, I anticipate that a judge would deem that I should pay any remaining, lawful part of the debt after unlawful charges, costs and possibly compensation have been deducted. Otherwise I would be unjustly enriched under the law of restitution. Please note this is not an exhaustive list of arguments, merely examples setting out relevant points.

 

Case A: The event that the agreement is ruled enforceable:

 

1. Inaccurate Data:

 

In your letter you state, “I am satisfied that the default registration with the credit reference agencies was issued correct (sic)…”. You offer no evidence to substantiate this claim. In my original request dated 26th June 2006 I asked that you provide me with a signed true and certified copy of the original default notice. I did this because at no point have I received such a notice. You have failed to provide this.

 

Section 87 of the 1974 Act states:

 

87 Need to provide a Default Notice

(1) Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,-

(a) to terminate the agreement, or

(b) to demand earlier payment of any sum, or

© to recover possession of any goods or land, or

(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

(e) to enforce any security.

 

Section 88 then sets out the contents of the default notice. In particular subsection 2 states:

(2) A date subsection (1) must not be less than seven days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1)) before those seven days have elapsed.

 

Section 89 then states:

89 Compliance with default notice

If before the date specified for that purpose in the default notice the debtor or hirer takes the action specified under section 88(1)(b) or © the breach shall be treated as not having occurred.

 

In my case, I have not been served with a default notice. Therefore you have not complied with these sections of the 1974 Act.

 

You have supplied credit reference agencies with this inaccurate information contrary to Schedule 1, Part 1, Principle 4 of the Data Protection Act 1998 (the 1998 Act) which states:

 

4. Personal data shall be accurate and, where necessary, kept up to date.

 

2. Unlawful Penalties:

 

As I set out in my letter of 25th September, you have applied a number “arrears charges”. These are unlawful penalties and any court claim will be issued to recoup these. According to the inaccurate data possessed by Experian Plc., the default was issued for £96 on 12/08/2004. On this date the amount applied to the account in unlawful penalties was £80. In addition you have charged interest on these unlawful penalties. Judicial law dating back over 100 years clearly enforces the statement made by the OFT in 2005 and states that in the event of a charge being deemed a penalty then the entire charge is a penalty and therefore unlawful. The default was issued for an amount substantially accounted for in unlawful penalty charges and is therefore also unlawful.

 

Case B: The event that the agreement is ruled unenforceable:

 

All of the arguments with regard to an enforceable agreement apply. Additionally;

 

3. Lack of Consent to Process Data:

 

On the 22nd of August you were issued with a Data Protection Act 1998 (the 1998 Act) section 10 Statutory Notice. I would ask you once again to read the accompanying covering letter that explains why this was issued and also the further comments made in my letter of 25th September. Additionally, I would like to clarify a point made in that letter. In your letter of 18th September you attempted to use Schedule 2, Paragraph 6(1) of the 1998 Act to exempt yourself from complying with my Statutory Notice. This reads:

 

6. - (1) The processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject.

However Section 10 states:

 

10. - (1) Subject to subsection (2), an individual is entitled at any time by notice in writing to a data controller to require the data controller at the end of such period as is reasonable in the circumstances to cease, or not to begin, processing, or processing for a specified purpose or in a specified manner, any personal data in respect of which he is the data subject, on the ground that, for specified reasons-

(a) the processing of those data or their processing for that purpose or in that manner is causing or is likely to cause substantial damage or substantial distress to him or to another, and

(b) that damage or distress is or would be unwarranted.

(2) Subsection (1) does not apply-

(a) in a case where any of the conditions in paragraphs 1 to 4 of Schedule 2 is met, or

(b) in such other cases as may be prescribed by the Secretary of State by order.

Only paragraphs 1-4 exempt the data controller from complying with section 10(1), therefore paragraph 6(1) does not apply.

 

Whether the agreement is ruled enforceable or unenforceable, the matter involves the 1998 Act. Therefore I am sending a copy of this letter to the Information Commissioner. My offer of 25th September still stands. Please note that mere correction or amendment to the default entry will not be acceptable. I am prepared to give you a further ten days to respond. Should I either not hear from you within this time frame, or am not satisfied with your response, I will commence Court action without further notice. Please note that if this matter proceeds to Court action, I will bring this offer to the attention of the Court.

 

Yours sincerely,

 

kateandpete

[Tinkerbelle]

I love it

 

Can't wait until the ICO read this. It totally blows their "legitimate interest" argument straight out the window. Wonder what else they have up their sleeve?

 

So far:

CAG -1

ICO - 0

[jimfishybob]

Right:-

 

Regulation 3 of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983.

 

This only relates to UNEXECUTED agreements, i.e. where a copy is sent out for some other purpose. Section 61 of the CCA states:-

 

61 Signing of agreement

(1) A regulated agreement is not properly executed unless—

 

(a) a document in the prescribed form itself containing all the prescribed

terms and conforming to regulations under section 60(1) is signed in the

prescribed manner both by the debtor or hirer and by or on behalf of the

creditor or owner, and

 

(b) the document embodies all the terms of the agreement, other than

implied terms, and

 

© the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.

 

Knew I had answer for it somewhere.

[pford]

OK. For better or worse I have sent this to HSBC. Thanks to zootscoot, peterbard and Number6 for help with this.

 

 

good luck i sent something on those lines to HFC part of the same group:grin:

[kateandpete]

Right:-

 

 

 

This only relates to UNEXECUTED agreements, i.e. where a copy is sent out for some other purpose. Section 61 of the CCA states:-

 

 

 

Knew I had answer for it somewhere.

I'm afraid you've missed the point a little jimfishybob. What you say is completely correct. HOWEVER, the 1983 Regs state that a copy of an executed agreement does NOT need to have a signature in order to satisfy a CCA s.77/78 request.

 

Utter madness, but sadly true. A number of us have contacted our MP's and the DTI about this as it is a fraudster's charter (like i argued in my last but one letter to HSBC).

 

Check out the http://www.consumeractiongroup.co.uk/forum/other-institutions/10900-loan-company-cannot-supply-21.html

thread, posts 400 onwards for lots of details.

 

The only way to get a copy of the signed agreement is to demand it as part of standard dislosure in a court case. The CCA provides NO right to see it per se.

This is a loophole in the act.

[jimfishybob]

Knackers.

[jimfishybob]

Still, it would need to be signed to be produced in court and if they chose not to produce it at this stage they would be a little red faced if they had to do it in the future.

[kateandpete]

Reply from HSBC

I write further to our previous correspondence.

I am aware that this matter has already been the subject of a thorough investigation by

the bank, and, on reflection, I regret that I am unable to depart from the views set out

in the letters from Heather Tucker, dated 18 September and 12 October.

 

Whilst noting your comments I must advise you that I have nothing further to add

with regard to this matter, although, I would reiterate that the bank firmly refutes the

suggestion that it has been negligent in anyway.

 

Whilst I accept that this letter will not provide the response that you had hoped for, I

trust that I have been able to clarify the bank's position. If you are not satisfied with

the bank's response you have the right to refer your complaint to the Financial

Ombudsman Service, as this letter represents the bank's final response. Further details

about the Ombudsman scheme are set out in the enclosed leaflet and you have six

months from the date of this letter, within which to refer your complaint to them

should you decide to do so.

 

Thank you again for taking the time to write. I am only sorry it was necessary for you

to do so.

Yours sincerely

So this says exactly nothing

 

Now I need to construct a convincing N1. But I have another question.

I sent the CCA s.78 request. They defaulted and then committed an offence in not replying. After they defaulted - I stopped payments. A while after they committed an offence they sent me a copy of their terms and conditions. Thus they satisfied the original s.78 request. SHOULD I HAVE RESTARTED PAYMENT? Even though the offence had been committed?

 

If you've been following this thread - you will know that I have made an offer in full and final settlement, but that it has been refused. I am now going to continue with court action, but should i resume my £50 monthly payments in the mean time?

 

Back to the court action. I think this case is complicated and I will be filing a paper N1. I need lots of arguments (and help) . Some example arguments that zootscoot has though up include:

 

1. The default was incorrectly applied because at the date of the default they owed me roughly the same amount as the arrears.

 

2. There was no notice given of default

 

3. If the agreement is terminated then: lack of consent to process data

 

4. Disproportionate penalty.

 

5. Excessive processing.

 

I'm going to make a start and will post the particulars of claim when I have a first draft. All help appreciated.

[dayglo]

my argument with vodafone on removal of defaul is going to come down to the fact that I issued a S10 notice to stop processing data which can only be excluded by using arguments from paras. 1-4 of schedule 2. Vodafone are claiming that the Information Commissioners Office say that Paragraph 6 applies (a legitimate use) I'm going to try and argue that the Act itself says only paras 1-4 apply as I think you already know (?) sorry if you do - I'm finding it hard to keep track of everything.

[kateandpete]

Here's my first stab at an N1 POC

 

 

 

1. The Claimant has an account XXXX XXXX XXXX XXXX ("the Account") with the Defendant which was opened on 06/07/1998.

 

2. During the period in which the Account has been operating the Defendant debited numerous charges to the Account in respect of purported breaches of contract on the part of the Claimant and also charged interest on the charges once applied. The Claimant understands that the Defendant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant.

 

3. A list of the charges applied is attached to these particulars of claim.

 

4. The Claimant contends that:

a) The charges debited to the Account are punitive in nature; are not a genuine pre-estimate of cost incurred by the Defendant; exceed any alleged actual loss to the Defendant in respect of any breaches of contract on the part of the Claimant; and are not intended to represent or related to any alleged actual loss, but instead unduly enrich the Defendant which exercises the contractual term in respect of such charges with a view to profit.

b) The contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of the Unfair Contract Terms in Consumer Contracts Regulations (1999), the Unfair Contract Terms Act 1977 and the common law.

 

 

5. Additionally, the Defendant has entered a default notice against the Claimant’s credit reference files. The Claimant contends that:

a) This default was incorrectly registered as the Defendant failed to comply with the procedures for registration set out in sections 87, 88 and 89 of the Consumer Credit Act 1974.

b) The Defendant has supplied this inaccurate information to credit reference agencies, contrary to Schedule 1, Part 1, Principle 4 of the Data Protection Act 1998.

c) The breach to which the default refers occurred substantially in respect of unlawful charges levied by the Defendant or was the result of impecuniosity caused directly by the taking by the Defendant of penalty charges which were applied unlawfully to the account.

 

6. Accordingly the Claimant claims:

a) the return of the amounts debited in respect of charges in the sum of £120 and interest charged thereon of £46.96;

b) Court costs;

c) Interest pursuant to section 69 County Courts Act as set out on the attached list of charges or at such rate and for such periods as the court deems just.

d) An order to prevent the Defendant from processing the Claimant’s data under Sections 7 and 13 of the Data Protection Act 1998.

 

 

 

I'm not very happy with this as it stands. I've not mentioned their CCA s.78 breach AT ALL! Can I work this in somehow - even though they satisfied it , but long after the 12 days + 1 month.

I want to include an order under section 10 DPA - but can't if I don't mention the CCA breach.

 

Is there any way I can work in the "disproportionate penalty" argument?

 

Is there any way I can work in the non-reciprocity of defaults?

 

I expect they will counter-claim for what I owe them - I guess i just don't defend that when it comes.

 

I want to get this right and need loads of help

[tamadus]

How about slipping this or similar into it

 

 

5 © the claimant made a statutory request under the Consumer Credit Act 1974 sec. 78 which the defendant failed to satisfy within the prescribed time. When it was satisfied the defendent provided a generic copy of their terms and conditions and a true copy of the signed agreement has still not been supplied. The claimant respectfully asks the court for standard disclosure of the alleged agreement.

 

That or similar should allow you to slip in the DPA sec 10 bit.

[zootscoot]

Hi K & P suggested amendments & additions:

 

1. The Claimant has an account XXXX XXXX XXXX XXXX ("the Account") with the Defendant which was opened on 06/07/1998.

 

2. During the period in which the Account has been operating the Defendant debited numerous charges to the Account in respect of purported breaches of contract on the part of the Claimant and also charged interest on the charges once applied. The Claimant understands that the Defendant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant.

 

3. A list of the charges applied is attached to these particulars of claim.

 

4. The Claimant contends that:

a) The charges debited to the Account are punitive in nature; are not a genuine pre-estimate of cost incurred by the Defendant; exceed any alleged actual loss to the Defendant in respect of any breaches of contract on the part of the Claimant; and are not intended to represent or related to any alleged actual loss, but instead unduly enrich the Defendant which exercises the contractual term in respect of such charges with a view to profit.

b) The contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of the Unfair Contract Terms in Consumer Contracts Regulations (1999), the Unfair Contract Terms Act 1977 and the common law.

 

 

5. Additionally, the Defendant has entered a default notice against the Claimant’s credit reference files. The Claimant contends that:

 

a) The defendant, as a data controller, is processing inaccurate data and the claimant requests the court makes an order for rectification under s.14 of the Data Protection Act 1998. The defendant has disclosed the claimant's personal data to third parties through their data processors of Equifax, Experian ...etc. The processing of data includes disclosing, disseminating and otherwise making available under s.1 of the Data Protection Act. The claimant's credit report obtained from Experian, Equifax etc states that a default marker was placed by the defendant showing that the amount outstanding was £XXXX. Experian, Equifax etc are processing this data on behalf of the defendant by disclosing the data to third parties.

 

The claimant submits that this data is incorrect as owing to unlawful charges and interest added thereon, the amount outstanding was £XXXX. A default marker is placed on a credit record where it can be established that the debtor was in serious breach of the credit agreement so that it is shown that the relationship of the creditor and debtor has broken down. This is generally where arrears are accrued and the debtor has failed to meet demands for payment. The breach to which the default refers occurred substantially in respect of unlawful charges levied by the Defendant or was the result of impecuniosity caused directly by the taking by the Defendant of penalty charges which were applied unlawfully to the account.The claimant submits that the application of unlawful charges and interest relating to such charges, to the account amounted to £XXXX. The defendant contends at the time the of the default the claimant was in arrears of £xxxx. It is thus submitted that the default marker is an inaccurate reflection of the relationship between the creditor and debtor and does not represent a serious breach of the contract.The Defendant has thus disclosed this inaccurate information , contrary to Schedule 1, Part 1, Principle 4 of the Data Protection Act 1998.

 

b) Furthermore this default was incorrectly registered as the Defendant failed to comply with the procedures for registration set out in sections 87, 88 and 89 of the Consumer Credit Act 1974. This therefore denied the claimant the opportunity to remedy any alleged breach of contract. The continued processing of the claimant's data is therefore in breach of Principle 1 of Schedule 1 of the Data protection Act which requires that data shall be processed fairly and lawfully. It is submitted that the defendant's failure to comply with its statutory obligations, affording protection to consumers, demonstrates that the processing of the claimant's data is both unfair and unlawful. It should also be noted in this respect that the defendant failed to respond to a statutory request under s.78 Consumer Credit Act within the statutory time frame and has thus committed a criminal offence.

 

c). In the alternative and without prejudice to para 5 (a) & (b) above, should the court find that the charges levied were indeed lawful and the data is thus accurately recorded it is submitted that the defendant has failed to comply with a statutory notice under s.10 of the Data Protection Act to cease processing the data and requests that the court makes an order under s.10 (4) requiring the defendant to cease processing the claimant's data. For this purpose the ceasing of processing of the personal data would include the processing of the data by the data processors of equifax, experian etc who are processing on behalf of the defendant.

 

 

The claimant wrote to the defendant on xx/xx/xxxx requesting the defendant to cease processing the claimant's data on the ground that it was causing substantial damage and distress in that (put your reasons here eg inability to otain credit, higher interest rates you have had to pay). This damage is unwarranted because (specify your reasons for the reasons it is unwarranted eg disproportionate penalty, length of time default is to stay on file is excessive and therefore in breach of Principle 3 & 5).

 

S.10 may only be excluded where one of the critieria set out in schedule 2 para 1 -4 is met. Para 1 is exclusively relevant to the present claim in that there is an issue concerning the consent of the claimant.

(i) It is respectfully submitted that whilst the claimant consented to the processing of personal data by the defendant by signing a contract containing a clause allowing the defendant to disclose data, this consent was not freely given and can thus not be used to deny the claimant the right to rely upon s.10.

 

(ii). Alternatively and without prejudice to para 5 a) and c (i). it is submitted that the contract was terminated by the claimant's repudiatory breach. The breach of contract went to the root of the contract and thus altered the relationship between the defendant and the claimant. The terms of the original contract no longer exist including the term relating to the claimant's consent for processing data.

 

 

 

6. Accordingly the Claimant claims:

a) the return of the amounts debited in respect of charges in the sum of £120 and interest charged thereon of £46.96;

b) Court costs;

c) Interest pursuant to section 69 County Courts Act as set out on the attached list of charges or at such rate and for such periods as the court deems just.

d) An order under s.14 to rectify incorrect data

e) An order to prevent the Defendant from processing the Claimant’s data under Sections 10 and

f) Compensation? under 13 of the Data Protection Act 1998.

[Guest willowb]

Wow!!!:o Zoot....that's a masterpiece......I'm subscribing:)

 

Wxx

[andrew1]

Hi K & P suggested amendments & additions:

 

Zoot - how could I do this after what you have written, it's bl***dy brilliant... however, 5b) last line..... 'criminal' not crimal offence.

 

I'll go away now and hide my head again and be as ashamed as I should be for even mentioning a negative after such wizzardry !

[kateandpete]

You're saving my life here zootscoot! You've spent so much time thinking about my (rather unusual) case. I am truly in your debt.

 

Please don't take this as me being churlish, but I have some questions. I'm a bear of very little brain .

 

 

The claimant submits that the application of unlawful charges to the account amounting to £XXXX exceed the amount of £xxxx the defendant contends amounted to arrears on the account. It is thus submitted that the default marker is an inaccurate reflection of the relationship between the creditor and debtor.

On the date of the default the amount of penalty charges was £80, the interest taken on this was about £5. The default was registered for £96. So on that date it didn't exceed the arrears. Since then they charged more and the penalties are now £120 with around £50 interest taken.

Does it matter that it DIDN'T exceed the arrears on the date of default?

If it does, am I arguing that the difference of £11 does not constitute the 'serious breach' required to cause my relationship with HSBC to break down?

 

c). In the alternative and without prejudice to para 5 (a) & (b) above, should the court find that the charges levied were indeed lawful and the data is thus accuratley recorded it is submitted that the defendant has failed to comply to a statutory notice under s.10 of the Data Protection Act to cease processing the data and requests that the court makes an order under s.10 (4) requiring the defendant to cease processing the claimant's data.

Am i right in saying that this is because i breached the contract. Therefore the agreement is terminated along with my consent to process data.

Alternatively and with out prejudice to para 5 c).

Do you mean para 5 a and b? I don't quite understand this.

 

6. Accordingly the Claimant claims:

a) the return of the amounts debited in respect of charges in the sum of £120 and interest charged thereon of £46.96;

b) Court costs;

c) Interest pursuant to section 69 County Courts Act as set out on the attached list of charges or at such rate and for such periods as the court deems just.

d) An order under s.14 to rectify incorrect data

e) An order to prevent the Defendant from processing the Claimant’s data under Sections 10 and

f) Compensation? under 13 of the Data Protection Act 1998.

Compensation? Wow! Does s13 specify what or do i have to say or is it up to a judge to decide what is appropriate?

 

 

zootscoot you are great! Once I've fully understood this i'll file the N1.

[kateandpete]

On a more general point. Is there any way I can challenge the nature of default markers per se? A default is just as bad as a CCJ in the way that it affects your everyday life. Yet there has been no 'due process', no opportunity to argue your side of the story, which you do get if you appear in the county court. It's just some bank employee hitting a button in the call centre. This has the same effect as a judgement in a court of law. How can this be proportionate.

Also, where is the reciprocity. HSBC defaulted in their obligations to me, but how can I register their default - thus giving information about THEIR behaviour to potential customers.

[Guest willowb]

Sorry if I'm being an idiot! but do you mean by of way contesting their right to process your data (via the CRAs) after the termination of the contract, i.e., SurlyBond's approach?

 

Lord I have bogglins too and they've been driving me nuts today:confused: I just don't seem to be able to find my brain amongst all this jelly...

 

Wxx

[pford]

On a more general point. Is there any way I can challenge the nature of default markers per se? A default is just as bad as a CCJ in the way that it affects your everyday life. Yet there has been no 'due process', no opportunity to argue your side of the story, which you do get if you appear in the county court. It's just some bank employee hitting a button in the call centre. This has the same effect as a judgement in a court of law. How can this be proportionate.

Also, where is the reciprocity. HSBC defaulted in their obligations to me, but how can I register their default - thus giving information about THEIR behaviour to potential customers.

 

 

human rights act

[zootscoot]

On the date of the default the amount of penalty charges was £80, the interest taken on this was about £5. The default was registered for £96. So on that date it didn't exceed the arrears. Since then they charged more and the penalties are now £120 with around £50 interest taken.

Does it matter that it DIDN'T exceed the arrears on the date of default?

If it does, am I arguing that the difference of £11 does not constitute the 'serious breach' required to cause my relationship with HSBC to break down?

 

 

Yes, I have amended accordingly.

 

Am i right in saying that this is because i breached the contract. Therefore the agreement is terminated along with my consent to process data.

 

 

Either that the consent was not freely given or that the consent was terminated along with the contract. You must also show substantial damage and or distress and the damage and or distress was unwarranted.

 

Do you mean para 5 a and b? I don't quite understand this.

 

 

I have amended the paragraphing. 'Without prejudice' is used where you are using contradictory arguments eg in para 5 a you are arguing that you have not commited a serious breach and in para 5© (ii) you are arguing that you have committed a serious breach. By stating without prejudice it means that your argument in para 5 © (ii) can not be used to against you in para 5 a). to show that you admit to committing a breach.

 

Does s13 specify what or do i have to say or is it up to a judge to decide what is appropriate?

 

Compensation is available entirely at the discretion of the judge. You have to show substantial damage or distress to rely on s.10. If you put forward evidence showing you have had to pay an increased interest on a mortgage or a loan for a necessary item the judge may base a compensation award on that. Also if you can point to any times you've been refused credit or not taken out credit because of an inability to afford the high interest rates and therefore had to do without necessary items (Probably would not cover luxury items). It may also include a sum to reflect embarrassment caused by being turned down for credit. The evidence you can gather about the damage and distress caused can then be put forward to the judge when deciding level or if any compensation is payable. Ultimately the judge will decide the level of compensation and may even decide no compensation is payable.

 

On a more general point. Is there any way I can challenge the nature of default markers per se? A default is just as bad as a CCJ in the way that it affects your everyday life. Yet there has been no 'due process', no opportunity to argue your side of the story, which you do get if you appear in the county court. It's just some bank employee hitting a button in the call centre. This has the same effect as a judgement in a court of law. How can this be proportionate.

 

 

You can address all these issues in demonstrating that the damage or distress was unwarranted as required under s.10. You can use the data principles in your arguments eg treating a default the same as a CCJ is unfair contrary to Principle 1 and infringes your right to a fair hearing contrary to Principle 6, the fact that the default remains for 6 yrs constitutes excessive processing contrary to Principle 3 & 5. You could also calculate how much it would cost you in increased payments for credit over the six year period to show that the loss inflicted for your breach of contract (which is a relatively minor breach) is excessive and thus amounts to a disproportionate penalty. This may be a way of attacking the term in the contract allowing them to process the data. I'll need to look into this further.

 

Also, where is the reciprocity. HSBC defaulted in their obligations to me, but how can I register their default - thus giving information about THEIR behaviour to potential customers.

 

 

You have covered their unlawful activity in para 5 b). I don't think you will get too far arguing that you should have a right to process their data... in fact isn't that what you are doing here? lol

 

Zoot - how could I do this after what you have written, it's bl***dy brilliant... however, 5b) last line..... 'criminal' not crimal offence.

 

 

 

Sorted

 

human rights act

 

The Human Rights Act only applies to public authorities.

 

Hope this makes sense!

 

Zoot

[justj10]

zootscoot, adviser extraordinaire, i am learning all the time, big thank you, your knowledge is invaluable.

Respect

[zootscoot]

Could be a problem:

 

http://www.consumeractiongroup.co.uk/forum/legalities/47930-could-suitable-template-default.html#post393163

[kateandpete]

Thanks once again zootscoot. I'll do the final draft of the N1 tomorrow - got to drive across the pennines to see family today.

 

WRT you prev post. Do you mean that the bank will argue that they aren't processing the data and I should also sue the CRA's? I agree that I may have to do this and had a long exchange with surlybonds about it before he vanished. I do want to go after the root of the problem first, ie HSBC. Once the N1 has gone to them I'll give the CRA's some more thought.

[zootscoot]

I've done a little more checking and it seems that the CRAs are merely data processors as oppose to data controllers. The CRAs process the data on behalf of the banks (data controller) which means that the banks remain liable for the actions of the CRA. This point must have been overlooked in Haydn's case. I've changed the above particulars to reflect this point.

 

All the best

 

Zoot