2005 NR SPO - payments missed now Bailiffs Possession warrant - **WON NEW SPO**

[MrZ]

I sent a Subject Access Request to Northern Rock in November 2010. After stalling and delaying they still have sent me nothing. I sent the SAR in order to prepare a claim against them for fees, charges and other dodgey dealings.

 

Short story, I do not wish to waste time with the Information Commisioners Office. I want to ask the court to compel them to comply.

 

Does anyone know which form needs to be submitted to the court. Any idea what the fee is? I have searched the library and found a template letter before action, but nothing relating to the court documents or particulars of claim.

 

Advice would be greatly appreciated.

[Ell-enn]

I believe it's an N244 as you are asking for a hearing to request the judge to order that they comply with the SAR - the fee is £75.00 and you should claim it back from NR in your application to the court.

[Guest]

mrz

consider exhausting all 'domestic' remedies before taking them to court. taking 'them' to court is risky, particularly re poss adverse costs. ie complain to o/c, and then (if no result) the ICO before going to court.

imo

[MrZ]

I believe it's an N244 as you are asking for a hearing to request the judge to order that they comply with the SAR - the fee is £75.00 and you should claim it back from NR in your application to the court.

 

Thanks Elle-enn. I suppose if its the wrong form, the clerk will let me know.

[MrZ]

mrz

consider exhausting all 'domestic' remedies before taking them to court. taking 'them' to court is risky, particularly re poss adverse costs. ie complain to o/c, and then (if no result) the ICO before going to court.

imo

 

Hi Ford,

 

I have complained in writing many times since November. This all stems from a baliffs warrant for possession last November. Basically NR were claiming I owed arrears. I was disputing this amount. I was paying the arrears anyway as part of a repayment plan, in addition to my regular payment. Still NR would not stop action and the eviction date was set. I went to court, and contested in every sense of the word. The judge decided in my favour by suspending the order, but without any documentation to show otherwise, he upheld the arrears amount given by NR and made a judgement for payment in that amount.

 

Since then I get letters from NR with different arrears amounts and mini statements with still another arrears amount. Any even though I am making every single payment as agreed they are still threatening to seek another possession order. They use silly excuses such as, You didnt pay on the 1st. You are supposed to pay on the 1st, not the 30th (which is my payday, and I have ALWAYS paid on that day). Essentially anything they can use to try to aggrevate me.

 

Without the data in the SAR I am not in a position to dispute anything. I think 120 + days is more than enough time for them to comply. I really cant afford to waste time waiting on the ICO to rule...especially regarding the threats by NR to enforce the suspended order despite the fact that I have made every single payment and arrears payments as agreed and judged in court. I may also have grounds to claim back the legal charges I incurred fighting the warrant if I can show from the SAR that I was paying as part of an agreed payment plan. If I am the claimant, then I hope the judge will give me the same benefit with regard to arrears etc as he did when NR claimed against me.

 

Is there something else I need to do before filing my claim? Also, what is a reasonable amount to claim for admin charges? Writing the letters etc? I have proof of postage for every letter, as well as any other costs I have incurred. They certainly charge me for admin, fees, legal etc so I should do the same.

Edited April 6, 2011 by MrZ
Spellcheck

[ploddertom]

I have done this in the past and started with Form N1 - be warned that it still took over 12 months to actually get into Court, many DJ's will admit they know very little about the DPA and dependent on who you get you may struggle. I was fortunate in that I won - it is not easy.

 

PT

[MrZ]

I have done this in the past and started with Form N1 - be warned that it still took over 12 months to actually get into Court, many DJ's will admit they know very little about the DPA and dependent on who you get you may struggle. I was fortunate in that I won - it is not easy.

 

PT

 

Hi ploddertom,

 

Perhaps the banks know this and therefore have no worries when it comes to non-compliance. Can you tell me why you used the N1 as opposed to the N244? I understood the N1 is for financial claims. What was the fee for the application? If you are willing, I would certainly welcome any advice you have regarding the particulars of the claim and "difficulties" you encountered. Maybe I can avoid the same issues. It would be good to get a few wins under our belts in order to offer support and encouragement to others in similar situations. BTW do District Judges consider judgements from other District Judges when deciding on a case?

 

As I briefly mentioned in the earlier threads, this all stems from NR's rush to get me into court and seek eviction. They disregarded the pre action protocol, and all sorts. Once I get all the info I need from the SAR i have every intention to apply to get the suspended order set aside and claim back all they legal fees they levied against me. I dont want them in a position to hold a suspended order over my head and threatent to possess every month. Any why? I have paid every single payment as ordered and agreed....and extra when I can!

They have put me in fight mode!

Edited April 6, 2011 by MrZ
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[Guest]

mrz

as i understand it, you are seeking full compliance with a dsar? if so, my view is to exhaust all possibilities before going to court. you say that you have already complained to the o/c with no result? and it has been some 4 months already without compliance? the next step would be the ICO imo, before taking them to court.

just my opinion.

Edited April 6, 2011 by Ford

[MrZ]

mrz

as i understand it, you are seeking full compliance with a dsar? if so, my view is to exhaust all possibilities before going to court. you say that you have already complained to the o/c with no result? and it has been some 4 months already without compliance? the next step would be the ICO imo, before taking them to court.

just my opinion.

 

I undertstand I can lodge a complaint with the ICO online. Do you know if this will result in a charge to the creditor. I seem to recall reading that lodging complaints with some regulators result in the bank/lender having to pay a fine or fee. Is such the case with the ICO? If I lodge the complaint with the ICO, am I expected to wait until they rule before applying to the court? I ask mainly because I wish not to wait longer than necessary, continuing to pay more than I owe, and NR thinking there is nothing I can do about it. I have other debts that I could be clearing down with the money going to NR, instead of accumulating more charges and interest.

[Guest]

afaik, i don't think that they get charged. not 100% on that though. the ICO itself doesn't award compensation directly, but they can make sure that an o/c complies with a dsar, and they have authority to fine them if the circumstances demand it. you may have to wait a bit, but as ploddertom says it took around 12 months re court action.

if you do lodge a complaint with the ico, then it may be better to see what comes of that before going to court.

imo

[MrZ]

afaik, i don't think that they get charged. not 100% on that though. the ICO itself doesn't award compensation directly, but they can make sure that an o/c complies with a dsar, and they have authority to fine them if the circumstances demand it. you may have to wait a bit, but as ploddertom says it took around 12 months re court action.

if you do lodge a complaint with the ico, then it may be better to see what comes of that before going to court.

imo

 

You've given me something to think about. I dont want the court to think I am being quick to litigate. At the same time I want NR to know I am serious and refuse to be bullied and harassed. I may lodge a complaint with the ICO and see what the initial response is.

 

On another note, is it possible I could apply to have the suspended order set aside? My grounds would be evidence that I have showing that an agreed repayment plan was in place. This is in the form of a letter from NR stating the terms of the agreement, my bank statements showing payments for the amount of the agreed repayment, and all of the statements, mini statements, and arrears notices all showing different amounts. And finally all payments to date in speadsheet form that show the true (and much lower amount) arrears. I would also show all of the letters essentially begging NR for a breakdown of the arrears (wich to date they still have not provided) and asking them to adhere to the pre action protocol and stop action. It might be a reach but I am open to suggestions. I dont want them holding this suspended possession order over my head.

 

I also failed to mention that in November, when NR went straight to a baliffs warrant, they were acting on a suspended possession order from 2005, which incidently was cleared in full 2 months later. Up to then I had never missed a single payment, and often made over payments. When I cleared it off 2 months later, rather than tell me I could have it stricken off, they held onto it for 5 years and completely out of the blue and without any notice applied for and was given the baliffs warrant. I have been fighting with them ever since! I dont want them to have this over me and empowering them to bully and harass me.

Edited April 6, 2011 by MrZ
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[Guest]

re dsar. exactly, exhaust all possibilities before going to court. once the ico get involved, they should understand that you are 'serious'. if that fails, then consider court action.

imo.

[MrZ]

Thanks guys,

 

I'll lodge the complaint online this afternoon. Just wondering how long it will take the ICO to inform NR there is a complaint against them? The possible 8 weeks for a decision is going to be a long wait though . As I said I am no loger sitting back and letting these, and others, take advantage of me. The bullying stops here!

[MrZ]

Also one important question. Do the ICO share all the information in my complaint with NR? Reason I ask is that this relates to what I believe was improper action by NR in applying and obtaining a baliffs warrannt for possession last year. The data held in the SAR will pottentially support a future claim against NR. I want to convey this to the ICO as a reason for my reluctane to give NR more time to comply. I dont however wish the ICO to share this information with them.

 

Any experience with this anyone?

[The Mould]

Also one important question. Do the ICO share all the information in my complaint with NR? Reason I ask is that this relates to what I believe was improper action by NR in applying and obtaining a baliffs warrannt for possession last year. The data held in the SAR will pottentially support a future claim against NR. I want to convey this to the ICO as a reason for my reluctane to give NR more time to comply. I dont however wish the ICO to share this information with them.

 

Any experience with this anyone?

 

Good afternoon MrZ

 

Perhaps you might like to have a thorough read of:

 

Elsias v The Welsh Ministers [2007] EWHC

 

And (the now famous case of)

 

Durant v The Financial Services Authority [2003] EWCA Civ 1746, [2004] FSR 573

 

What was the script of your SAR? You will see the relevance of the question from reading the above cases.

 

Kind regards

 

The Mould

[MrZ]

Good afternoon MrZ

 

Perhaps you might like to have a thorough read of:

 

Elsias v The Welsh Ministers [2007] EWHC

 

And (the now famous case of)

 

Durant v The Financial Services Authority [2003] EWCA Civ 1746, [2004] FSR 573

 

What was the script of your SAR? You will see the relevance of the question from reading the above cases.

 

Kind regards

 

The Mould

 

Hi The Mould,

 

I havent yet read the above case. I will do so and if after I feel its necessary to post the script of my request I will do so. Meanwhile however, I can confirm a couple of answers to my earlier questions for the benefit of those reading the thread.

 

The ICO states they do not levy fines or fees in any case. They will simply do an assessment and if applicable tell the lender they should comply. I was told that this assessment will hold great weight in court should an order for compliance be sought. In other words, they cant do anything but their assessment will put to rest any matter before the court regarding the responsibilty of the lender with regard to compliance.

 

Secondly, the ICO is not interested in any statement or reason as to why I have requested the access to information. They are only concerned with whether the request was valid, and if the recipient has or is being compliant.

 

Thirdly, I can request the ICO withhold certain data such as telephone numbers and addresses, and I can also request that specific information within my complaint be withheld. The ICO will make efforts to ensure the information is withheld, but can not make any guarantees to that effect. Finally, if disclosure of information is of great concern, it would be best not to make it part of the complaint.

 

Off to read the above case now

 

Thanks again Mould

Edited April 7, 2011 by MrZ
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[MrZ]

I feel a bit more deatil may be in order so that any advice is given in full light of the history to now.

 

As I alluded to in an earlier thread, Northern Rock had a suspended possession order issed in 2005. Within 2 months I cleared the arrears in full. Prior to this, I had 6 years of regular payments, none missed. I was ignorant to the fact that once the arrears were cleared, that I could apply to have the suspended order stricken off. They held onto it for 5 years more.

 

Last year October 2010, out of the blue and with no notice before action, I received a letter from their solictors stating they had applied for a balliffs warrant for eviction. I was gobsmacked. Yes there were "small" arrears. But I was paying toward the arrears and had/have a formal agreement stating so. I also disputed the amount of arrears as it was much higher than my own records indicated.

 

After delay upon delay to my "friendly requests" for a breakdown, I had no choice but to SAR them. Because I also applied for the judge to set aside the baliffs warrant, I CPR'd them for a breakdown. Up to the date of court they provided nothing explaining their arrears figures. In the absence of any breakdown of the arrears. the judge ordered that I continue paying the amount I had been paying toward the arrears, but he held that their arrears figures were correct and included this amount in the order. He basically said they they should present me with an updated arrears figure and breakdown outside of court (although this is not refernced in the final judgment), and that pending this I needed to make the agreed payments I had been making.

 

This was all in Novemeber of 2010. Here we are 90+ days later and they still have not provided me with the breakdown. I believe they know that a claim for unfair charges is following, and will not supply me with the break down that shows these unfair charges. Meanwhile by court order I am being forced to pay an amount I do not owe. Plus their legal fees (£220.00) for defending my application to set aside, which the judge did NOT order, but they have applied to my mortage anyway. And all the while they hold the threat of possession over my head has they have a suspended order.

 

I want to file a claim against them. I was hoping I could do this on an N244 and save a little money. I dont know if I should apply for an order compelling them to comply with the SAR, or if I should apply to have the suspended order set aside, in light of new information, and then CPR them for the info.

Edited April 8, 2011 by MrZ
Spellcheck and bad maths

[MrZ]

I have two questions actually. The first is concerning my mortgage. I have requested an SAR but the lender is being difficult and refusing to comply. I am dealing with this separately in another thread. I would like to know if the mortgage taken out in 2000 for £56000.00 would be regulated by the CCA?

 

I cant find any copies of the the original agreement. The loan balance is much higher now, 170,000. The lender is being much less than helpful. They have only told me that they are regulated by the FSA. The reason for my question is because I want to ask for a copy of my agreement and statements so I can know exactly what they are charging me for etc. How do I go about this? The SAR isnt working, and may well end up on court before it does. I am not sure that the CCA applies here. Can anyone advice please?

 

Second question. I have a second charge on my property. The original loan amount was £10,000.00. I am fairly sure this was a standard fixed sum secured loan. Again I have not been able to locate the orginal agreement. I have sent an SAR and a request under the CCA for the agreement. The balance on this loan is now £26,000.00, due to interest and fees. The lender constantly refers to this as a mortgage. Is it in fact a mortgage? What exactly constitutes a mortgage from a secured loan? What are the key differences if any when trying to obtain information for each?

 

These are both currently active and I am paying monthly on each.

 

Thanks guys.

[Lea_HTH]

A mortgage is simply the terminology your lender is choosing to use to refer to your secured loan. It makes no difference what they call it - the end result is the same, the loan is secured by a charge on your property.

 

You make a SAR notice request under the Data Protection Act, not the CCA. If they have already exceeded the 40 day time limit for returning this information to you, then send them notice that unless they comply with your request in 7 days from the date of the letter, then you will proceed to court action and be requesting your costs for doing so. They'll probably then send the information you have asked for.

 

If you haven't made the request under the correct format, and paid them 10 pounds (the maximum they can charge), then they don't have to comply. If this is the case, do a search for a SAR notice on the site and send it again, by recorded delivery.

[42man]

You might find this link useful... - http://www.consumeractiongroup.co.uk/forum/showthread.php?178660

 

And this one too - http://www.ico.gov.uk/upload/documents/library/data_protection/practical_application/taking_a_case_to_court.pdf

[MrZ]

Thanks Lea,

 

That answers my question about any differences between a secured loan and a mortgage. My mortgage lender is the only one of my credits refusing my SAR. Its been well beyond the 40 days. I need to get to some detailed info about what they are charging me, hence why i wanted to send the CCA as an alternative way to get "some" of that info. I am pretty sure based on your answer and others, that the CCA 1974 does apply to my mortgage as well.

 

Thanks again!

 

 

Thanks for the info 42man,

 

My dilemma relating taking them to court, is know which form or method to approach this. Having read the information in the link, it seems that an N1 form and small claims is the way to go IF I am claiming damages. I have certainly had much stress and harassment from them. But how do I put a monetary figure on this to claim damages?

 

Secondly, I dont want to have to pay 175.00 for an application to the court with no chance of getting it back.

If I simply want an order for them to comply, not seeking damages, but do want to be awarded my costs for the court fee, and perhaps the admin of having to write the letters, etc....what is the best way to go about this? I was told the n244 would get it in front of a judge, but by using that form I wouldnt get my cost back.

 

Any ideas?

[Lea_HTH]

It's a bit more complicated than that - vis a vis the CCA and the mortgage. It can apply, so long as the mortgage is not one of the exceptions - e.g. s16(6C) CCA if it's a regulated mortgage under the Financial Services and Markets Act 2000. Section 16(2)(b) excludes loans secured by mortgage.

 

Regarding your SAR notice, I suggest you send a pre-action letter as described above giving them a further seven days in which to comply, after which you should proceed to court.

 

Good luck.

 

You're not likely to get damages at this stage (and certainly not from stress or perceived harassment from chasing the SAR notice!), and since what you really want is the information, that is what you should be aiming to secure, therefore you are after a specific performance order - which is very straightforward, and you will be able to claim your actual costs (i.e. the costs arising out of submitting the claim).

 

I'd save any claim for damages until you know what you are dealing with once you have the information you are seeking.

[MrZ]

Which form should be used for a performance order? And would this be District Judge? I will ask for a hearing , because if they defend it will cost them, and if they dont i get a default order right?

[Lea_HTH]

It's the N208 form for a part 8 claim.

 

It's all in the County Court, so it will be either a District Judge or a Deputy District Judge.

 

You'll get a hearing whether they respond or not.

 

Before issuing proceedings you should ensure you have done all you should have done - i.e. did you pay them? Did you wait the 40 days, did you send a letter giving them a further 7 days to comply. If you haven't done any of these things you automatically allow them a defence, in which case you'll pay their costs.

[MrZ]

 

Thanks for this info. A short timeline below

 

Me - November 2010, sent SAR with fee

Them - December 2010, sent reply saying to include signature fee returned

Me - Jan 2011, sent letter stating signature not required, gave my consent verbally on the phone after passing their security, offer to answer security questions via post or their local branch, included fee

Them - March 2011, further reply saying still need my signature, returned fee,

Me - March 2011, sent LBA with fee giving one final opportunity for them to comply

Them - April 2011, sent reply saying no signature no action, returned fee

Me - Today, a final LBA with fee, sent via email, fax and recorded delivery

Me - tomorrow or soon after apply to the court.

 

In the N208, in my particulars of claim do I have to ask for my costs and detail what they are? The form asks for solicitors cost, but I am not a solicitor, can I add my own admin costs there?