Abbey default removal

[Guest willowb]

yes that's right. We will argue that is 'substantial damage'

Right ok.....I'll construct my new poc and post it when I'm done, may be tm though.

 

Wxx

[dayglo]

ok - I'll be here!

[sycostill]

for my defaults they are have only just been satisfied, although the debt collectors haven't done this yet. i've requested a copy of the default notice, and i've added the default removal to my claim for charges as more interest has gone from my account. it appears my account is still gaining interest although defaulted, like they aren't really closed or on hold. once the money from the debt collectors goes back to the account, they will be several hundred short!

[aardvark the lecturer]

How's the reading going Willow?

 

Sentences that begin addressed to Mr Dayglo and end with "What a guy" can't be wise!!

 

Keep your chin up.

[dayglo]

 

Dayglo....you're wonderful!!!!!

 

Wxxx

 

I preferred this one!

[aardvark the lecturer]

Again,

 

Sentences that begin addressed to Mr Dayglo and end with "Wonderful" can't be wise either!!

 

 

 

Interestingly, not all words ending in W are unwise........

[dayglo]

but neither unwise nor wonderful end in w

[Guest willowb]

Keep your chin up.

 

Aardvark I think you're wonderful too!

 

Spreading the wonder!!!

 

Wxx

[aardvark the lecturer]

Interestingly, not all words beginning with W are unwise........

 

 

Doh.......Now edited above..........

 

Aardvark I think you're wonderful too!:grin:

 

Spreading the wonder!!!

 

Wxx

 

.........sigh.........

 

Thanks Willow.............not as wonderful as you are though..............

[Guest willowb]

Gee Thanks.... :D

 

Seen as you are here, would you like some light reading?

 

Here are my amended POC......this is gonna cost me £65 because I have to change the whole claim due to the charges etc.....

 

I may have to phone thw Court again however, as I don't have that in the bank spare right now so I wonder how long I have to do this, does anyone know?

 

 

 

-------------------------

 

The Claimants held a current account *********** with the Defendant from 12th May 1997 until 16th January 2003 under their Terms and Conditions.

 

1.Part 1(1) Data Protection Act 1998 defines Data Processing as reproduced below

"Processing" in relation to information or data, means obtaining, recording or holding the information or data or carrying out any operation or set of operations on the information or data, including-

(a)organisation, adaptation or alteration of the information or data,

(b)retrieval, consultation or use of the information or data,

©disclosure of the information or data by transmission, dissemination or otherwise making available, or

(d)alignment, combination, blocking, erasure or destruction of the information or data;

 

2.Abbey National Plc Limited (The Defendant) is processing the Claimants' personal subject data consistent with paragraphs 1.0(a)(b)© above in that they maintain an entry in the credit file held on their behalf by the three Credit Reference Agencies (CRAs) in the UK

 

3. Section 10(1) Data Protection Act 1998 states that 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.

 

4. The Claimants issued a Notice to the Defendant, dated 2nd October 2006 to cease processing personal data in accordance with his rights under Section 10 (1) of the Data Protection Act.

 

5. Section 10(1) is subject to Section 10(2) which states that

(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.

 

6. In respect of Section 10(2)(a) none of the conditions described in paragraphs 1 to 4 are met in this particular case and in respect of Section 10(2)(b) The Secretary of State has not prescribed an order relevant to this particular case.

 

7. Section 10(3) Data Protection act 1998 describes the obligations of a Data Controller upon receipt of a notice issued under Section 10(1). The data controller must within twenty-one days of receiving a notice under subsection (1) ("the data subject notice") give the individual who gave it a written notice-

(a) stating that he has complied or intends to comply with the data subject notice, or

(b) stating his reasons for regarding the data subject notice as to any extent unjustified and the extent (if any) to which he has complied or intends to comply with it.

 

8. Section 10(3) requires the Defendant to reply stating justified reasons (if any) for refusing to comply within 21 days of receipt of the Notice.

 

The Claimant received no reponse from the Defendant.

The Defendant therefore, has not complied with their obligations under Section 10(3) in that they have neither ceased processing data nor replied with justified reasons as to their non-compliance with the properly issued notice under Section 10(1)

 

In accordance with his rights under Section 10(4) the Claimant requests from the court, an order to the Defendant that he comply with the Notice issued under S.10 (1) as the notice appears reasonable and the Defendant has failed to give justified reasons for non-compliance within the 21 day period.

 

9. The claimant maintains that the continued processing of personal data is unwarranted in this particular case. In particular that the continued processing causes substantial damage and distress.

 

 

• 
  
• The default occurred on 16th January 2003. A bank with whom we had a current account closed the account in September of this year. As a direct result of the adverse credit data supplied by the Defendant to the Credit Reference Agencies in the UK, the Claimant could not open a 'full' banking facility with another financial establishment and eventually opened a 'basic' account with a bank. With the 'basic' account, the Claimant is not entitled to a cheque guarantee card and the debit card issued with the account (electron) is refused at a lot of places which causes embarrassment to the Claimants and the fact that I no longer have a cheque guarantee card is inconvenient at times.

• Financially the Claimants are unable to obtain a 'low' rate mortgage due to the adverse credit data placed on their file. For example a typical low rate at this time as issued by the 'Woolwich' is 4.98% and comparison the Claimants' current rate of mortgage is 5.59%. Typically and for the duration which the Defendant intends the default to remain on the Claimants' file, which is 26mths, this has resulted in the following calculated loss-

£140,095 (Mortgage amount) @ 4.98% (low rate of interest) = £866.07 (monthly capital and repayment amount)

 

£140,095 @ 5.59% (current mortgage rate) = £916.59 (monthly capital and repayment amount)

 

A difference of £50.52 per month

 

£50.52 X 26 (months) = A total predicted loss of £1,313.52

 

 

Therefore as a result of the default maker that is being maintained as part of the Defendants' processing of the Claimants' data, substantial and disproportionate damages have been incurred.

 

 

The continued processing for 6 years is excessive in this case and is carried out for longer than is necessary against principle 5 of the Data Protection Act 1998.

 

 

10. The claimant wrote to the Defendant on 21/07/06 enclosing a £1 postal order requesting a certifies copy of the default notice issued on account ********* on 16/1/03. After subsequent attempts to obtain a copy, the Defendant has failed to supply it. It is the Claimant's contention that he Defendant is obligated to supply a copy of the agreement under the legislation contained within s.78 (1) Consumer Credit Act 1974 (s.77 (1) for fixed sum credit).

 

11. The Defendants' obligation also extends to providing a statement of account and any deed if the debt was sold on. It is also the Claimant's contention that at no time did the Claimant grant permission, either expressly or implied for the Defendant to arbitrarily extend that permission to store, process or disclose any personal data beyond the cessation date of the contract. The Claimant believes that the Defendant's perceived right to arbitrarily choose to extend the length of that contract without the Claimant's agreement would be unlawful and unenforceable under the provisions of the Unfair Terms in Consumer Contracts Regulations 1999. The Defentant has failed to provide the Claimant with any evidence to prove agreement to such terms in perpetuity and it is therefore the Claimant's contention that the Defendant is in breach of both the contract itself and the Data Protection Act 1998, by the Defendant's continual disclosure of personal data.

 

12. Furthermore, on the 14th August 2006 the Claimant made a Subject Access Request for the Defendant to supply the Claimants with statements from the the past 6 years of the accounts' history. As the Claimant had changed address since the account was first opened the Defendant required the Claimants to provide proof of identity, the Claimants' complied with this request on 11th September 2006.

 

13. On the 25th September when the statements still had not been supplied, the Claimants wrote to complain to the Defendant. When a satisfactory response was not received from the Defendant, the Claimant issued a complain to the Information Commissioners' Office (all supporting documentation can be supplied).

 

15. The Defendant eventually supplied the Claimaints with the said statements but it was too late to submit the unfair charges claim with the Default removal claim (a letter requesting the charges to be refunded and a letter before action can be supplied).

 

16. During the period in which the Account was operating the Defendant debited numerous charges to the Account in respect of purported breaches of contract on the part of the Claimants 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 Claimants.

 

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

 

18. 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.

 

19. Accordingly the Claimant claims:

 

a) the return of the amounts debited in respect of charges in the sum of £331.50 and any interest charged thereon; (I'm going to claim interest up until the origional date of this claim 26th Oct....sound right?)

 

 

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.

 

-----------------------

 

 

Best I could do, what do you think?

 

Wxx

 

[dayglo]

wow! I'll get reading then

[dayglo]

I couldn't make cut and paste work and keep track changes on in this text box.

 

I uploaded a revised word file to here :-

 

http://www.fosm.org.uk/willowb.doc

 

a few typos, and I would leave out the detail of the mortgage stuff for now just put the summary.

 

 

The Claimants held a current account xxxxxxxx with the Defendant from 12th May 1997 until 16th January 2003 under their Terms and Conditions.

 

1.Part 1(1) Data Protection Act 1998 defines Data Processing as reproduced below

"Processing" in relation to information or data, means obtaining, recording or holding the information or data or carrying out any operation or set of operations on the information or data, including-

(a)organisation, adaptation or alteration of the information or data,

(b)retrieval, consultation or use of the information or data,

©disclosure of the information or data by transmission, dissemination or otherwise making available, or

(d)alignment, combination, blocking, erasure or destruction of the information or data;

 

2.Abbey National Plc Limited (The Defendant) is processing the Claimants' personal subject data consistent with paragraphs 1.0(a)(b)© above in that they maintain an entry in the credit file held on their behalf by the three Credit Reference Agencies (CRAs) in the UK

 

3. Section 10(1) Data Protection Act 1998 states that 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.

 

4. The Claimants issued a Notice to the Defendant, dated 2nd October 2006 to cease processing personal data in accordance with his rights under Section 10 (1) of the Data Protection Act.

 

5. Section 10(1) is subject to Section 10(2) which states that

(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.

 

6. In respect of Section 10(2)(a) none of the conditions described in paragraphs 1 to 4 are met in this particular case and in respect of Section 10(2)(b) The Secretary of State has not prescribed an order relevant to this particular case.

 

7. Section 10(3) Data Protection act 1998 describes the obligations of a Data Controller upon receipt of a notice issued under Section 10(1). The data controller must within twenty-one days of receiving a notice under subsection (1) ("the data subject notice") give the individual who gave it a written notice-

(a) stating that he has complied or intends to comply with the data subject notice, or

(b) stating his reasons for regarding the data subject notice as to any extent unjustified and the extent (if any) to which he has complied or intends to comply with it.

 

8. Section 10(3) requires the Defendant to reply stating justified reasons (if any) for refusing to comply within 21 days of receipt of the Notice.

 

The Claimant received no response from the Defendant.

The Defendant therefore, has not complied with their obligations under Section 10(3) in that they have neither ceased processing data nor replied with justified reasons as to their non-compliance with the properly issued notice under Section 10(1)

 

In accordance with his rights under Section 10(4) the Claimant requests from the court, an order to the Defendant that he comply with the Notice issued under S.10 (1) as the notice appears reasonable and the Defendant has failed to give justified reasons for non-compliance within the 21 day period.

 

9. The claimant maintains that the continued processing of personal data is unwarranted in this particular case. In particular that the continued processing causes substantial damage and distress.

 

· The default occurred on 16th January 2003. A bank with whom we had a current account closed the account in September of this year. As a direct result of the adverse credit data supplied by the Defendant to the Credit Reference Agencies in the UK, the Claimant could not open a 'full' banking facility with another financial establishment and eventually opened a 'basic' account with a bank. With the 'basic' account, the Claimant is not entitled to a cheque guarantee card and the debit card issued with the account (electron) is refused at a lot of places which causes embarrassment to the Claimants and the fact that I no longer have a cheque guarantee card is inconvenient at times.

·The Claimants are unable to obtain competitive mortgage due to the continued processing of personal subject data. the claimant maintains that the processing of this data causes damages to the extent that additional mortgage interest in applied to their account at a cost of £50.32 per month compared with a typical high street mortgage provider.

A difference of £50.52 per month

 

£50.52 X 26 (months) = A total predicted loss of £1,313.52

 

 

Therefore as a result of the default maker that is being maintained as part of the Defendants' processing of the Claimants' data, substantial and disproportionate damages have been incurred.

 

The continued processing for 6 years is excessive in this case and is carried out for longer than is necessary against principle 5 of the Data Protection Act 1998.

 

 

10. The claimant wrote to the Defendant on 21/07/06 enclosing a £1 postal order requesting a certified copy of the default notice issued on account ********* on 16/1/03. After subsequent attempts to obtain a copy, the Defendant has failed to supply it. It is the Claimant's contention that he Defendant is obligated to supply a copy of the agreement under the legislation contained within s.78 (1) Consumer Credit Act 1974 (s.77 (1) for fixed sum credit).

 

11. The Defendants' obligation also extends to providing a statement of account and any deed if the debt was sold on. It is also the Claimant's contention that at no time did the Claimant grant permission, either expressly or implied for the Defendant to arbitrarily extend that permission to store, process or disclose any personal data beyond the cessation date of the contract. The Claimant believes that the Defendant's perceived right to arbitrarily choose to extend the length of that contract without the Claimant's agreement would be unlawful and unenforceable under the provisions of the Unfair Terms in Consumer Contracts Regulations 1999. The Defendant has failed to provide the Claimant with any evidence to prove agreement to such terms in perpetuity and it is therefore the Claimant's contention that the Defendant is in breach of both the contract itself and the Data Protection Act 1998, by the Defendant's continual disclosure of personal data.

 

12. Furthermore, on the 14th August 2006 the Claimant made a Subject Access Request for the Defendant to supply the Claimants with statements from the past 6 years of the accounts' history. As the Claimant had changed address since the account was first opened the Defendant required the Claimants to provide proof of identity, the Claimants' complied with this request on 11th September 2006.

 

13. On the 25th September when the statements still had not been supplied, the Claimants wrote to complain to the Defendant. When a satisfactory response was not received from the Defendant, the Claimant issued a complaint to the Information Commissioners' Office (all supporting documentation can be supplied).

 

15. The Defendant eventually supplied the Claimants with the said statements but it was too late to submit the unfair charges claim with the Default removal claim (a letter requesting the charges to be refunded and a letter before action can be supplied).

 

16. During the period in which the Account was operating the Defendant debited numerous charges to the Account in respect of purported breaches of contract on the part of the Claimants 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 Claimants.

 

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

 

18. 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.

 

19. Accordingly the Claimant claims:

 

a) the return of the amounts debited in respect of charges in the sum of £331.50 and any interest charged thereon; (I'm going to claim interest up until the original date of this claim 26th Oct....sound right?)

 

 

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.

 

[aardvark the lecturer]

The Claimants held a current account *********** with the Defendant from 12th May 1997 until 16th January 2003 under their Terms and Conditions.

 

1.Part 1(1) Data Protection Act 1998 defines Data Processing as reproduced below

"Processing" in relation to information or data, means obtaining, recording or holding the information or data or carrying out any operation or set of operations on the information or data, including-

(a)organisation, adaptation or alteration of the information or data,

(b)retrieval, consultation or use of the information or data,

©disclosure of the information or data by transmission, dissemination or otherwise making available, or

(d)alignment, combination, blocking, erasure or destruction of the information or data;

 

2.Abbey National Plc Limited (The Defendant) is processing the Claimants' personal subject data consistent with paragraphs 1.0(a)(b)© above in that they maintain an entry in the credit file held on their behalf by the three Credit Reference Agencies (CRAs) in the UK

 

3. Section 10(1) Data Protection Act 1998 states that 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.

 

4. The Claimants issued a Notice to the Defendant, dated 2nd October 2006 to cease processing personal data in accordance with his rights under Section 10 (1) of the Data Protection Act.

 

5. Section 10(1) is subject to Section 10(2) which states that

(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.

 

6. In respect of Section 10(2)(a) none of the conditions described in paragraphs 1 to 4 are met in this particular case and in respect of Section 10(2)(b) The Secretary of State has not prescribed an order relevant to this particular case.

 

7. Section 10(3) Data Protection act 1998 describes the obligations of a Data Controller upon receipt of a notice issued under Section 10(1). The data controller must within twenty-one days of receiving a notice under subsection (1) ("the data subject notice") give the individual who gave it a written notice-

(a) stating that he has complied or intends to comply with the data subject notice, or

(b) stating his reasons for regarding the data subject notice as to any extent unjustified and the extent (if any) to which he has complied or intends to comply with it.

 

8. Section 10(3) requires the Defendant to reply stating justified reasons (if any) for refusing to comply within 21 days of receipt of the Notice.

 

The Claimant received no reponse from the Defendant.

The Defendant therefore, has not complied with their obligations under Section 10(3) in that they have neither ceased processing data nor replied with justified reasons as to their non-compliance with the properly issued notice under Section 10(1)

 

In accordance with his rights under Section 10(4) the Claimant requests from the court, an order to the Defendant that he comply with the Notice issued under S.10 (1) as the notice appears reasonable and the Defendant has failed to give justified reasons for non-compliance within the 21 day period.

 

9. The claimant maintains that the continued processing of personal data is unwarranted in this particular case. In particular that the continued processing causes substantial damage and distress.

 

 

• Is something missing here?
  
• The default occurred on 16th January 2003. A bank with whom we had a current account closed the account in September of this year. As a direct result of the adverse credit data supplied by the Defendant to the Credit Reference Agencies in the UK, the Claimant could not open a 'full' banking facility with another financial establishment and eventually opened a 'basic' account with a bank. With the 'basic' account, the Claimant is not entitled to a cheque guarantee card and the debit card issued with the account (electron) is refused at a lot of places which causes embarrassment to the Claimants and the fact that I no longer have a cheque guarantee card is inconvenient at times. This section feels weak in some way

• Financially the Claimants are unable to obtain a 'low' rate mortgage due to the adverse credit data placed on their file. For example a typical low rate at this time as issued by the 'Woolwich' is 4.98% and comparison the Claimants' current rate of mortgage is 5.59%. Typically and for the duration which the Defendant intends the default to remain on the Claimants' file, which is 26mths, this has resulted in the following calculated loss-

£140,095 (Mortgage amount) @ 4.98% (low rate of interest) = £866.07 (monthly capital and repayment amount)

 

£140,095 @ 5.59% (current mortgage rate) = £916.59 (monthly capital and repayment amount)

 

A difference of £50.52 per month

 

£50.52 X 26 (months) = A total predicted loss of £1,313.52

 

 

Therefore as a result of the default maker that is being maintained as part of the Defendants' processing of the Claimants' data, substantial and disproportionate damages have been incurred.

Can't say it's disproportionate as the the figure defaulted for isn't referrenced to compare it to (Is it in your original?)

 

The continued processing for 6 years is excessive in this case and is carried out for longer than is necessary against principle 5 of the Data Protection Act 1998.

 

 

10. The claimant wrote to the Defendant on 21/07/06 enclosing a £1 postal order requesting a certifies (certified) copy of the default notice issued on account ********* on 16/1/03. After subsequent attempts to obtain a copy, the Defendant has failed to supply it. It is the Claimant's contention that he Defendant is obligated to supply a copy of the agreement under the legislation contained within s.78 (1) Consumer Credit Act 1974 (s.77 (1) for fixed sum credit). You need to add what you want them to do about it, in this act, what does it say the response is to failure to provide this document?

 

11. The Defendants' obligation also extends to providing a statement of account and any deed if the debt was sold on. It is also the Claimant's contention that at no time did the Claimant grant permission, either expressly or implied for the Defendant to arbitrarily extend that permission to store, process or disclose any personal data beyond the cessation date of the contract. The Claimant believes that the Defendant's perceived right to arbitrarily choose to extend the length of that contract without the Claimant's agreement would be unlawful and unenforceable under the provisions of the Unfair Terms in Consumer Contracts Regulations 1999. (isn't there a 'consent' angle in the consumer credit act, that would be a stronger angle than UTCCR) The Defentant has failed to provide the Claimant with any evidence to prove agreement to such terms in perpetuity and it is therefore the Claimant's contention that the Defendant is in breach of both the contract itself and the Data Protection Act 1998, by the Defendant's continual disclosure of personal data. (and so the claiment requests that the defendant be ordered to..........)

 

12. Furthermore, on the 14th August 2006 the Claimant made a Subject Access Request for the Defendant to supply the Claimants with statements from the the past 6 years of the accounts' history. As the Claimant had changed address since the account was first opened the Defendant required the Claimants to provide proof of identity, the Claimants' complied with this request on 11th September 2006.

 

13. On the 25th September when the statements still had not been supplied, the Claimants wrote to complain to the Defendant. When a satisfactory response was not received from the Defendant, the Claimant issued a complain to the Information Commissioners' Office (all supporting documentation can be supplied).

 

15. The Defendant eventually (bit wishy washy, can you state the number of days exactly?) supplied the Claimaints with the said statements but it was too late to submit the unfair charges claim with the Default removal claim (a letter requesting the charges to be refunded and a letter before action can be supplied). (whoa nelly, are charges a part of this claim or not? if they are, then this section is irrelevent to your Poc, they should simply state the case for them being unlawfull)

 

16. During the period in which the Account was operating the Defendant debited numerous charges to the Account in respect of purported breaches of contract on the part of the Claimants 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 Claimants.

 

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

 

18. 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.

(I assume all the bits from the standard N1 Poc in the templates library are in here? It will give you the 8% phrasing as well (see below))

19. Accordingly the Claimant claims:

 

a) the return of the amounts debited in respect of charges in the sum of £331.50 and any interest charged thereon; (I'm going to claim interest up until the origional date of this claim 26th Oct....sound right?)(can you then apply the 8% daily interest rate from then as well?)

If this is a summary, what are you requesting they do about the default?

 

 

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.

 

-----------------------

 

 

Best I could do, what do you think?

 

Wxx

 

I think it's brilliant, I don't know how you guys can even start writing something like this, I just wouldn't know where to begin!

 

 

Hope some of those made sense....

[dayglo]

think it's brilliant, I don't know how you guys can even start writing something like this, I just wouldn't know where to begin!

 

begin writing the bloody minutes (sorry willow - off topic!)

[aardvark the lecturer]

............................................ahem..................

 

[sound of rock being replaced]

[Guest willowb]

Thank you guys for all your help:) ....there's a lot to digest and I have missed a vital part of the argument out.....the fact that the defaulted amount is in dispute as it is an inaccurate reflection of the money owed due to the charges owed to me......Zoot pointed that out earlier, she quoted s.14......can someone make the relevant law clearer to me?

 

Dayglo hun, can you edit out my a/c details in your post....you're too bloody quick man!!!

 

I'm going to make the suggested amendments and post back later.

 

Thanks again!

 

Wxxx

[dayglo]

I've been using section 14 to help someone else, sorry it's more reading but here it is...

 

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 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.

 

*The fourth principle 7. The fourth principle is not to be regarded as being contravened by reason of any inaccuracy in personal data which accurately record information obtained by the data controller from the data subject or a third party in a case where-

(a) having regard to the purpose or purposes for which the data were obtained and further processed, the data controller has taken reasonable steps to ensure the accuracy of the data, and

(b) if the data subject has notified the data controller of the data subject's view that the data are inaccurate, the data indicate that fact.

[Guest willowb]

Thanks Dayglo, I suppose I only really need refer to S.14 and set out (1) in my POC do you think? if more information is required in their Defence then at least I now have it.

 

And, can you edit my a/c details from your post? I know you're a busy boy and all.......

 

Right I'm off to fry my brain again.......it'll evaporate soon:rolleyes:

 

Wxxx

[dayglo]

Thanks Dayglo, I suppose I only really need refer to S.14 and set out (1) in my POC do you think? if more information is required in their Defence then at least I now have it.

 

And, can you edit my a/c details from your post? I know you're a busy boy and all.......

 

Right I'm off to fry my brain again.......it'll evaporate soon:rolleyes:

 

Wxxx

 

edit done.

[Guest willowb]

Thanks sweetie:)

 

Right, here goes! I've tried to include/amend all those points mentioned by you both and also include the points made by Zoot (it's sinking in bit by bit and I finally think I've got it!.....well, sort of )

 

----------------------------------------------

 

The Claimants held a current account ************* with the Defendant from 12th May 1997 until on or around 16th January 2003 under their Terms and Conditions.

1.Part 1(1) Data Protection Act 1998 defines Data Processing as reproduced below

"Processing" in relation to information or data, means obtaining, recording or holding the information or data or carrying out any operation or set of operations on the information or data, including-

(a)organisation, adaptation or alteration of the information or data,

(b)retrieval, consultation or use of the information or data,

©disclosure of the information or data by transmission, dissemination or otherwise making available, or

(d)alignment, combination, blocking, erasure or destruction of the information or data;

 

2.Abbey National Plc Limited (The Defendant) is processing the Claimants' personal subject data consistent with paragraphs 1.0(a)(b)© above in that they maintain an entry in the credit file held on their behalf by the three Credit Reference Agencies (CRAs) in the UK

 

3. Section 10(1) Data Protection Act 1998 states that 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.

 

4. The Claimants issued a Notice to the Defendant, dated 2nd October 2006 to cease processing personal data in accordance with his rights under Section 10 (1) of the Data Protection Act.

 

5. Section 10(1) is subject to Section 10(2) which states that

(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.

 

6. In respect of Section 10(2)(a) none of the conditions described in paragraphs 1 to 4 are met in this particular case and in respect of Section 10(2)(b) The Secretary of State has not prescribed an order relevant to this particular case.

 

7. Section 10(3) Data Protection act 1998 describes the obligations of a Data Controller upon receipt of a notice issued under Section 10(1). The data controller must within twenty-one days of receiving a notice under subsection (1) ("the data subject notice") give the individual who gave it a written notice-

(a) stating that he has complied or intends to comply with the data subject notice, or

(b) stating his reasons for regarding the data subject notice as to any extent unjustified and the extent (if any) to which he has complied or intends to comply with it.

 

8. Section 10(3) requires the Defendant to reply stating justified reasons (if any) for refusing to comply within 21 days of receipt of the Notice.

 

The Claimant received no response from the Defendant.

The Defendant therefore, has not complied with their obligations under Section 10(3) in that they have neither ceased processing data nor replied with justified reasons as to their non-compliance with the properly issued notice under Section 10(1)

 

In accordance with his rights under Section 10(4) the Claimant requests from the court, an order to the Defendant that he comply with the Notice issued under S.10 (1) as the notice appears reasonable and the Defendant has failed to give justified reasons for non-compliance within the 21 day period.

 

9. The Claimants maintain that the continued processing of their personal data is unwarranted in this particular case. In particular that the continued processing causes substantial damage and distress. The Claimants are seeking an order from the Court that the Defendant ceases to process the Claimants' data.

 

• As a direct result of the Defendants' continued processing of the Claimants' data, the Claimants have been refused 'full' current account facilities and only offered 'basic' account facilities. With the 'basic' account, the Claimant is not entitled to a cheque guarantee card and the debit card issued with the account (electron) is refused at a lot of places which causes embarrassment to the Claimants. The Claimants no longer have access to a cheque guarantee card is extremely inconvenient.
  
• The Claimants are unable to obtain a competitive mortgage due to the continued processing of personal subject data. The Claimants maintain that the processing of this data causes damages to the extent that additional mortgage interest applied to their account at a cost of £50.32 per month compared with a typical high street mortgage provider.

£50.52 X 26 (months - the time the default is due to remain on file)

= A total predicted loss of £1,313.52

 

 

As a result of the default maker that is being maintained as part of the Defendants' processing of the Claimants' data, substantial and disproportionate damages have been incurred.

 

The continued processing for 6 years is excessive in this case and is carried out for longer than is necessary against principle 5 of the Data Protection Act 1998.

 

 

10. The claimant wrote to the Defendant on 21/07/06 enclosing a £1 postal order requesting a certified copy of the default notice issued on account ********* on 16/1/03. After subsequent attempts to obtain a copy, the Defendant has failed to supply it. It is the Claimant's contention that he Defendant is obligated to supply a copy of the agreement under the legislation contained within s.78 (1) Consumer Credit Act 1974 (s.77 (1) for fixed sum credit).

11. The defendant's obligation also extends to providing a statement of account and any deed if the debt was sold on. It is also the Claimant's contention that at no time did the Claimant grant permission, either expressly or implied for the Defendant to arbitrarily extend that permission to store, process or disclose any personal data beyond the cessation date of the contract. The Claimant believes that the Defendant's perceived right to arbitrarily choose to extend the length of that contract without the Claimant's agreement would be unlawful and unenforceable under the provisions of the Unfair Terms in Consumer Contracts Regulations 1999. The Defentant has failed to provide the Claimant with any evidence to prove agreement to such terms in perpetuity and it is therefore the Claimant's contention that the Defendant is in breach of both the contract itself and the Data Protection Act 1998, by the Defendant's continual disclosure of personal data. (apparently this does not apply when a contract has ended....according to Zoot, so I've edited it out)

 

10. On the 14th August 2006 the Claimant made a Subject Access Request for the Defendant to supply statements from the the past 6 years of the accounts' history. As the Claimant had changed address since the account was first opened the Defendant required the Claimants to provide proof of identity, the Claimants complied with this request on 11th September 2006.

 

11. On the 25th September when the statements still had not been supplied, the Claimants wrote to complain to the Defendant. When a satisfactory response was not received from the Defendant the Claimants issued a formal complaint to the Information Commissioners' Office (all supporting documentation can be supplied).

 

12. The Defendant supplied the Claimants with the said statements on or around 26th October 2006 at which time the Claimants were about to undertake the claim for the default removal (a letter requesting the charges to be refunded and a 'letter before action' can be supplied).

 

13. During the period in which the Account was operating the Defendant debited numerous charges to the Account in respect of purported breaches of contract on the part of the Claimants 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 Claimants.

 

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

 

15. 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.

 

16. Accordingly the Claimant claims:

 

a) the return of the amounts debited in respect of charges in the sum of £331.50 and any interest charged thereon; at a daily rate of 0.00022% and the same rate until judgment or settlement.

 

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.

 

17. Furthermore, the Claimants contest the default under Section 14 of the Data Protection Act 1998 on the grounds that the data being processed by the Defendant is inaccurate, as the defaulted total amounted to £1,295.00 and the sum owed to the Claimant in unfair charges amounted to £331.50.

 

18. Section 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.

 

---------------------------------------

 

If I've missed anything out I'm sorry, my head is sore! lol

 

I hope it's ok *****twitch ****twitch****throws head back*****

 

Wxxx

[dayglo]

change 20 from a copy of the Act to a request for action

 

20. The claimaint requests that the court makes an order under Section 14 of the Data Protection Act 1998 to either rectify, block, erase or destroy those data and any other personal data in respect of the data being processed by the Defendant which contain an expression of opinion which appears to the court to be based on the inaccurate data

[Guest willowb]

Sorry got my numbers jumbles up, it's now 18!

 

So, is this better.....

 

18. The Claimant requests that the Court orders the Defendant to remove the default marker from the Claimants' credit file under Section 14 - (1).

 

How's the wording?

 

Wxxx

[dayglo]

I think that's ok! good luck.

[Guest willowb]

Thanks again Dayglo, Aardvark and Zoot!

 

Fingers crossed! but I feel I have a much much better chance now thanks to you guys!

 

Wxxx

[dayglo]

how many times do i have to tell you to stop saying 'thank-you' we haven't achieved anything yet!