Claim against T-Mobile for ruining my credit rating

[paulx2]

Hi, sorry in advance if I am posting in the wrong area.

 

I am currently suing T-Mobile for the difference between a mortgage I was refused and a mortgage I received due to an adverse credit rating. My Credit Report has only one payments from T-Mobile and the rest of it is A+++. The reason I did not pay the final bill was because it included an incorrect charge for "early cancellation" of my contract. I gave 30 days notice, they claim I didn't. I only paid after I received a letter from a debt collection agency (all this happened 2 years ago).

 

I then sued T-Mobile for the full amount of the incorrect charge plus cash for lost time and phonecalls. They settled out of court and I assumed that was the end of the matter until I was refused a mortgage for a buy to let property due to this "missed" payment. I eventually received a mortgage on the property from The Woolwich but the difference between this mortgage and the better one was about £2,000 over 2 years. I have an email from my mortgage broker stating the only reason for the decline of the better mortgage was the default from T-Mobile.

 

I contacted T-Mobile and asked them to correct my credit rating whilst I stalled on the purchase of the property for 2 weeks. They wrote to me and said they would correct it as a matter of urgency..........they only corrected it after 3 months.

 

I then took the Woolwich mortgage and started my claim against T Mobile for the difference and had a preliminary hearing at court last week.

 

The judge was a a typical type and said my case was that I had been "badly done to" I said I thought it was more than that and he said it all needed to realte to law and not fairness...........T Mobile's lawyer was obviously thrilled by the Judge's attitude and she also managed to get the judge to allow her an extension to getting her paperwork in as she is on holiday for a few weeks! He also reduced the length of the full hearing from 3 to 2 hours at her bequest and also accepted that she had not received her allocation questionairre and so was reinstating her defence (this had previously been thrown out as she had not filed everything on time. I was pretty demoralised after the event to be honest and do not know whether it is worth continuing.

 

I need to decide on wht grounds to make my claim through law..............as far as I am concerned they incorrectly billed me so I had every right to stop the payments and they should have corrected my file but what part of law that is I have not got the foggiest although data protection and also one of the consumer acts might be useful. I would just like to know whether anyone thinks I should carry on with this, I want to, but feel everything is stacked against me...............thought the small claims court was the small man's court not yet another lawyers domain! Anyway many thanks for any advice/words of wisdom offered.

[citizenB]

I have moved you to the correct forum - you do not have to do anything, it is purely administrative.

[citizenB]

I will try and find some help for you

[BRIGADIER2JCS]

MR Hat, I am surprised at this comment the English Civil Law system is the best in the world certainly not funded as you suggest, your comments have absolutely no merit and I am unapproving your post..

[citizenB]

I am not quite sure what help you require from us. Can you let us know exactly what you said in your Particulars of Claim and what Tmobile's response/defence is to date.

[Andyorch]

Hi Paul

 

IF you could provide the above then we can look at refuting their defence.Could you confirm what the hearing was for above? Allocation Hearing?

 

This is what jumps out at me in your synopsis of the events so far " and also accepted that she had not received her allocation questionnaire and so was reinstating her defence (this had previously been thrown out as she had not filed everything on time."

 

 

 

Failure by a party to file an allocation questionnaire CPR 26

 

(2) Practice Direction 26 is modified by substituting for paragraph 2.5 the following –

 

‘2.5 (1) Where a party does not file an allocation questionnaire within the time specified by Form N152, the court will serve a notice on that party requiring the allocation questionnaire to be filed within 7 days from service of the notice.

 

2.5 (2) Where a party does not file the allocation questionnaire within the period specified in the notice served pursuant to paragraph (1) then that party’s claim, defence or counterclaim (as appropriate) will automatically be struck out without further order of the court.’

 

CPR 26.6.6

 

Sanctions

 

(1) This paragraph sets out the sanctions that the court will usually impose for default in connection with the allocation procedure, but the court may make a different order.

(2)

(a) Where an allocation hearing takes place because a party has failed to file an allocation questionnaire or to provide further information which the court has ordered, the court will usually order that party to pay on the indemnity basis the costs of any other party who has attended the hearing, summarily assess the amount of those costs, and order them to be paid forthwith or within a stated period.

(b) The court may order that if the party does not pay those costs within the time stated his statement of case will be struck out.

(3) Where a party whose default has led to a fixing of an allocation hearing is still in default and does not attend the hearing the court will usually make an order specifying the steps he is required to take and providing that unless he takes them within a stated time his statement of case will be struck out.

 

 

Regards

 

Andy

[2Grumpy]

Sounds like your claim might be similar to the ferguson V british gas (I think)

 

T-Mobile accepted that they had overcharged you so they should have updated your credit file to reflect what had been agreed. Their failure to do so caused you losses

[paulx2]

thanks, I will look into this and post back shortly.

[paulx2]

Sounds like your claim might be similar to the ferguson V british gas (I think)

 

T-Mobile accepted that they had overcharged you so they should have updated your credit file to reflect what had been agreed. Their failure to do so caused you losses

 

I think my case may be a little different to this in that I am not worried about the harrassment rather the error on my credit file. In my opinion the final bill was issued incorrectly (Mobile phone companies often levy "early cancellation" charges if you dare to leave them as a kind of punishment), but T-MObile are going to argue that by cfancelling my direct debit I was in breach of the terms and conditions of the contract and therefore they were within their rights to place me on file as a bad debtor. My argument is that due to the fact the bill was incorrect I had every right to cancel the agreement as per the Durkin Versus DGS Retail case. They will then probably argue that the bill was not incorrect as I did not cancel the contract giving 30 days notice (which I did but there are no phone records etc.). I will then say why did you correct my credit file if you thought you were right to place the record on there.To be honest I am not sure whther this will stand or not...............they offered me an out of court amount (which I probably should have taken) which was around 25% of my claim but I think they have now been emboldened by the Judge in the prelim hearing and I am wondering whethre I should carry on!

[paulx2]

Hi Paul

 

IF you could provide the above then we can look at refuting their defence.Could you confirm what the hearing was for above? Allocation Hearing?

 

This is what jumps out at me in your synopsis of the events so far " and also accepted that she had not received her allocation questionnaire and so was reinstating her defence (this had previously been thrown out as she had not filed everything on time."

 

 

 

Failure by a party to file an allocation questionnaire CPR 26

 

(2) Practice Direction 26 is modified by substituting for paragraph 2.5 the following –

 

‘2.5 (1) Where a party does not file an allocation questionnaire within the time specified by Form N152, the court will serve a notice on that party requiring the allocation questionnaire to be filed within 7 days from service of the notice.

 

2.5 (2) Where a party does not file the allocation questionnaire within the period specified in the notice served pursuant to paragraph (1) then that party’s claim, defence or counterclaim (as appropriate) will automatically be struck out without further order of the court.’

 

CPR 26.6.6

 

Sanctions

 

(1) This paragraph sets out the sanctions that the court will usually impose for default in connection with the allocation procedure, but the court may make a different order.

(2)

(a) Where an allocation hearing takes place because a party has failed to file an allocation questionnaire or to provide further information which the court has ordered, the court will usually order that party to pay on the indemnity basis the costs of any other party who has attended the hearing, summarily assess the amount of those costs, and order them to be paid forthwith or within a stated period.

(b) The court may order that if the party does not pay those costs within the time stated his statement of case will be struck out.

(3) Where a party whose default has led to a fixing of an allocation hearing is still in default and does not attend the hearing the court will usually make an order specifying the steps he is required to take and providing that unless he takes them within a stated time his statement of case will be struck out.

 

 

Regards

 

Andy

 

Thanks Andy, So......the defence was struck out due to none receipt of allocation questionairre.........I completed the paperwork asking for the defnce to pay the claim in full and then was told a stay had been put on the case and the court would be in touch.

 

I received a letter from the court asking me to go to a preliminary hearing to see if the defence would be re instated and also to get a rough idea of what the claim entailed and the chances of success.

 

I attended the hearing and the only thing discussed was the rough particulars of my claim. I was pulled up on my use of English a couple of times as I did not use correct court like terminology (EG answering "of course" rather than "yes").

 

I was cut off at the knees by the judge a couple of times and I lost my confidence to be honest.Essentially no discussion took place on whether the defence was being re instated and so I can only assume the court has allowed it. I spoke to T-Mobile who said it should be reinstated as they did not receive the request for the allocation questionairre to be returned.

 

In terms of what happens next they need a witness statement from me and then we go to full hearing. I will not be so mealy mouthed in the hearing as I feel Iwas definately sidelined during the preliminary hearing which dealt more with me than the fact T-Mobile can't sort their paperwork out and I had to take a day's holiday too!!

 

The hearing has been put down for 2 hours, the judge initially wanted 3 but defence said it would not take that long so he agreed to 2..........I couldn't believe it! Anyway, lets see what happens, I think I will definately start by asking about the re-instatement of the defence at the full hearing just for my own sanity as I am very frustrated that the judge did not at least take her to task and even more infuriated by my own lack of arguing my points!

 

Thanks for your help, I have been donating as I feel this is a great site and deserves to keep going as it seems the only place you can get answers!

Edited February 26, 2013 by citizenB

[paulx2]

I am not quite sure what help you require from us. Can you let us know exactly what you said in your Particulars of Claim and what Tmobile's response/defence is to date.

 

Hi, may thanks,I am just looking at how to couch my claim in law so that I have a chance of winning the case.My particulars in a nut shell are:I was wrongly billed and refused to pay that bill. The on line phone centre accepted the error and said they would correct the bill (There is no evidence of this). Next correspondence was from a debt collection agency who I paid immediately.I then sued T-Mobile and was paid in full out of court.I applied for a mortgage this year but was refused due to a default payment on credit file placed by T-Mobile (rest of file is clean). I am suing for the difference in the 2 mortgages (£2,000) as if i did not have the default I would have received the more favourable mortgage (that fact is in writing from my mortgage advisor).Their defence is:I cancelled my contract early so the charge is correct (their word against mine and the contract was over the minimum period and I DID give 30 days notice although no record exisits of this apparently).I am in breach of the T&Cs of my contract as I did not settle the final bill so therefore they have the right to place me on file as a bad debtor.Not sure if the above helps but let me know if you need any more info and any help is genuinely v ery much appreciated.ThanksPaul

[Andyorch]

Ok I presume they made application to set a side the Strike out hence the hearing.

 

The CPR i have posted above is quite clear and concise with regards to following the court procedure and the DJ should be aware of that fact and refused the defence to be resubmitted.

 

I assume that " she " was a Solicitor and as her chosen profession will also be aware of the CPR and procedure.I feel the wool has been completely pulled over your eyes here Paul.

 

" and also accepted that she had not received her allocation questionnaire " I will find the relevant CPR but im sure there was amendments which revoked the sending out of AQs to represented parties and only to litigants in persons unrepresented.

 

Therefore it was her responsibility to get and complete and file and serve said AQ.

 

Regards

 

Andy

[paulx2]

Ok I presume they made application to set a side the Strike out hence the hearing.

 

The CPR i have posted above is quite clear and concise with regards to following the court procedure and the DJ should be aware of that fact and refused the defence to be resubmitted.

 

I assume that " she " was a Solicitor and as her chosen profession will also be aware of the CPR and procedure.I feel the wool has been completely pulled over your eyes here Paul.

 

" and also accepted that she had not received her allocation questionnaire " I will find the relevant CPR but im sure there was amendments which revoked the sending out of AQs to represented parties and only to litigants in persons unrepresented.

 

Therefore it was her responsibility to get and complete and file and serve said AQ.

 

Regards

 

Andy

 

Hi Andy,"She" is senior legal counsel at EE (new name for T Mobile).So I now feel I have been badly done to (as the judge would say!). As this matter was not dealt with at the hearing, can I request a new hearing? Or is there a chance it will be struck out at the hearing if I bring it up? Really useful info Andy, if only i had come on here before the prelim!!!!! Another cock up by me!Cheers againPaul

[Andyorch]

You have submitted your AQ I assume? Shes going to have an holiday and then possibly submit hers?

[paulx2]

You have submitted your AQ I assume? Shes going to have an holiday and then possibly submit hers?

 

Yes, I submitted mine and shortly before the deadline and then I received a letter from the court saying the defence had been struck out due to failure to submit an aq. The prelimhearing was in order to see whether the defence could be re-instated but this matter was never discussed in court. The Judge has not requested that T Mobile enter an aq and his instructions from now are to prepare for a full hearing of the case. The holiday issue was due to the fact the Judge wanted all paperwork back to the court within 21 days but the defence said they were on holiday so that would not be possible. The Judge accepted that she could have an additional 7 days to submit her witness statement so 28 days in total but an AQ was never mentioned.

[Andyorch]

The DJ can dispense with the need of an AQ in clear cut easy claims under normal circumstances...but after the claim was struck out !!!!!

 

You will need to prepare a concise Witness Statement now and proceed with the allocation timetable however you can raise the points we have discussed and bring it back into question.

 

Research the CPR and ICO guide to Credit reporting and damaged credit ...you now need to expand and prove loss and damage.

 

Give your thread a bump as it nears your date for submission.

 

Regards

 

Andy

[paulx2]

The DJ can dispense with the need of an AQ in clear cut easy claims under normal circumstances...but after the claim was struck out !!!!!

 

You will need to prepare a concise Witness Statement now and proceed with the allocation timetable however you can raise the points we have discussed and bring it back into question.

 

Research the CPR and ICO guide to Credit reporting and damaged credit ...you now need to expand and prove loss and damage.

 

Give your thread a bump as it nears your date for submission.

 

Regards

 

Andy

 

I know, gutted, I can't belive it either but still what can I say. I feel really upset about my treatment at the preliminary.

In terms of proving loss, I have the email from my mortgage advisor and the illustration of the difference in the two mortgages. I think my issue is getting around the fact that they reported me to the credit referencing agencies in the first place.

 

They are adament I fall foul of their terms and conditions and say in their defence the following:

 

"The claimant has failed to plead a particularised claim to set out the caustaion or quantification of the alleged loss and further failed to set out a cause of action based on any statute or otherwise.The claim is not particularised properly as per CPR part 16 and is unreasonably vague and should be struck out.The defendant denies it is liable to the claimantThe defendant has the right as per the terms and conditions to report and register information with any credit reference agencies for debt collection purposes."

 

The defendant submits that entries on the claimants credit report were a reflection of the claimants's conduct of his account.

 

In my opinion the TandCs are unfair as they do not allow me the chance to question an incorrect bill. I believe this has some link to the consumer credit act or Unfair Terms in Consumer Contracts Regulations 1999.

 

Should I go down this route do you think? Or just stae my claim and hope the DJ picks it up? Any help as always, greatly appreciated

Edited February 26, 2013 by Andyorch
Spacing

[paulx2]

Not sure why I cannot insert lines ! Sorry about that.....looks like one massive paragraph!

[Andyorch]

Is that their total defence verbatim? Could you post your Particulars also.

[paulx2]

Is that their total defence verbatim? Could you post your Particulars also.

Hi Andy, with pleassure, it may take me sometime to copy their defence into a Word documeny or maybe I could scan and attach? Anyway I will happily attach I do appreciate all this greatly. In terms of my particulars, I did a moneyclaim onlne but since then I have particularised everything and this will essentially form the basis for my witness statement. I will attach that as well I will do both these tomorrow as my file is at work.

 

Thanks again

 

Paul

[Andyorch]

If you could Paul (attach as pdfs) then we can try to turn this around not only on law if that what the DJ wants but also on CPR and the court process not followed.

[paulx2]

Is that their total defence verbatim? Could you post your Particulars also.

 

Hi,I think I have attached the files.................... in my claim are as follows:

 

Doc 1: My credit report in July (my score then was GOOD with a rating of 437 but Experian have deleted that file from my account, now I have had the default moved the score is 517 Excellent).

Doc 2 is an email from my broker telling me that the default is why I did not get the credit.

Doc 3 is a letter I wrote to T-Mob to get the default taken off.

Doc 4 Is their letter saying they would correct the file urgently.

Doc 5 is an illustration of losses.I contacted Equifax yesterday and they could not tell me when the file had been corrected but it must have been after I had stopped my subscription to them in October last year (I got the mortgage in August of that year so too late!!).

 

I am trying to get them to put that in writing but they are..........how can I put it...........not very interested in doing that.

Edited February 27, 2013 by Andyorch
Spaced

[Andyorch]

Paul you have left personal identifiable data on your PoC/Judgment/Defence I have unapproved the attached...please cleanse and re upload.

[paulx2]

Paul you have left personal identifiable data on your PoC/Judgment/Defence I have unapproved the attached...please cleanse and re upload.

 

That was petty thick of me! Sorry about that and thanks for flagging it up. I have attached again and think it is all clean now.

[Andyorch]

Ok many thanks Paul

 

 

Interesting looking at the judgment and reason they list CPR 51 paragraph 2.5 (2) yet there is no provision listed in the CPR as yet:-

 

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_part51a

 

Their defence is weak and templated (probably from an Internet Forum)

 

Your Particulars do lack the CPR compliance but not to the extent that the claim cannot be understood.

 

Give me a nudge as your date for WS approaches and we can prepare a WS in response to their defence and also the behaviour of the DJ in not following the Court process

 

Regards

 

Andy

 

PS can you work out the date that they made application to set a side the judgment....iE within the 7 days constraint?