car2403 -v- HFC Bank (Default removal)

[car2403]

I have just got a reply from the Data Protection Act S.A.R - (Subject Access Request) I sent and they've included statements with £1145 in fees/charges applied over the 6 accounts, which have now been consolidated in to these agreements

 

How do I now include this in my Defence/Counterclaim? It was submitted on Friday as I wasn't expecting to get the statements from the other accounts under the S.A.R. request - I'd now like to counterclaim this £1145-odd figure, as the consolidated loan that I'm Defending enforcement against includes these in it's balance.

 

Is it a case of requesting permission to amend the Defence, probably with a fee, as happens with amended POC, or is there something else I can do?

[car2403]

Letter from Northampton County Court;

 

I acknowledge receipt of your defence. A copy is being served on the claimant. (or the claimant's solicitor)

 

The claimant may contact you direct to attempt to resolve any dispute. If the dispute cannot be resolved informally, the claimant will inform the court that he wishes to proceed. The court will then inform you of what will happen.

 

Where he wishes to proceed, the claimant must contact the court within 28 days after receiving the copy of your defence. After that period has elapsed, the claim will be stayed. The only action the claimant can then take will be to apply to a judge for an order lifting the stay.

 

Haven't defended a claim like this, so is this normal?

 

Does that mean I only have to continue defending if the claimant decides to pursue the claim? If they don't, do I claim against them as per my counterclaim, because you can only (presumably!) counterclaim where there is a claim in the first place?

 

With the date of the letter, they have until 16 November to proceed.

[tomterm8]

Issuing a counter claim means that they can't discontinue the case without your agreement.

[caro]

They can discontinue the original claim, but the counterclaim would still stand unless you withdrew it.

[car2403]

First response from Equifax;

 

The Client concerned has investigated the accuracy of the information above and have verified its accuracy. Therefore, this information will remain unchanged.

 

This information is supplied and owned by our subscribing clients and as such we do not have the ability to amend the information without written authorisation from them to do so. If you are unhappy with the outcome of your dispute we suggest that you contact the company concerned with any additional enquiries and they will advise you further.

 

If you require further information on the content of your credit file, you may wish to visit: https://equifaxuk.custhelp.com. Here you can view our Frequently Asked Questions and submit an on-line query or attach supporting documentation via our "Ask a Question" facility, with no concerns about postal delays.

 

We hope the above details are of assistance to you.

 

Equifax Customer Services

 

My response;

 

I do not accept this as a resolution to my query - I have already queried this entry unsuccessfully with HFC Bank Customer Relations in that they have sent me a final response outlining their refusal to remove the Default information I am querying.

 

This query is NOT resolved and should NOT be marked as being resolved without either my consent or the removal of the offending information. A simple referral back to square one is not a satisfaction resolution to my query. Please ensure my Data Protection Act s.10/s.12 Notice is put in to effect, or I will take the action outlined in the attached letter against Equifax as a 2nd Defendant to HFC Bank.

 

car2403

[car2403]

Second response from Equifax; (the speed of this response means they can't have dealt with my complaint effectively!)

 

Thank you for your recent enquiry.

 

We acknowledge your comments regarding this information, however at this stage I wish to advise that your Dispute has been closed and the reply we have received from the supplier is considered adequate for the purpose of a Dispute.

 

This information is supplied by our credit clients and as such we do not have the power to amend this information unless we have received written authorisation to do so from the respective sources, and can only suggest that you contact the company concerned with any further enquiries you may have regarding these details and they will advise you further.

 

You are entitled to load a Notice of Correction/Add a Note at your address if you disagree with, and Equifax are unable to correct, information in your Credit Report. A Notice of Correction/Add a Note is a service made available within the Consumer Credit Act of 1974, Section 159. It is a statement of up to 200 words written by you to give a clear and accurate explanation of the circumstances surrounding any information held on your Credit Report. Any lender will have access to the Notice of Correction/Add a Note and will be able to consider its content.

 

Equifax will not include a Notice of Correction/Add a Note on your Credit Report if it deems it to be defamatory, frivolous, scandalous, or if it is deemed in any way unsuitable. In this situation the text will be returned for adjustment or passed to the Office of Information Commissioner for adjudication.

 

If you wish to remove the Notice of Correction/Add a Note prior to this please inform Equifax.

 

You can apply for a Notice of Correction/Add a Note by completing the Ask a Question facility located at

 

https://equifaxuk.custhelp.com/cgi-bin/equifaxuk.cfg/php/enduser/ask_val.php?p_sid

 

In order to deal with your Add a Note / Notice of Correction more efficiently, choose the correct Product, Category and Sub Category. Choosing "Add a Note" will ensure your submitted text is reviewed and added to your file.

 

If you require further information on the content of your credit file, you may wish to visit: https://equifaxuk.custhelp.com. Here you can view our Frequently Asked Questions and submit an on-line query or attach supporting documentation via our "Ask a Question" facility, with no concerns about postal delays.

 

We hope the above details are of assistance to you.

 

Equifax Customer Services

 

and my second response;

 

I STILL do not accept this as a resolution to my query - as a Data Controller under the Data Protection Act, Equifax is jointly responsibile for continuing to process/disclose incorrect financial information about me, as a Data Subject under the Data Protection Act. Your response in no way outlines a legal justification for refusing to unconditionally comply with my Data Protection Notice as issued in the attached letter.

 

I must state again, any further failure on Equifax's behalf to comply with that Notice will result in legal action being brought against you as a second Defendant to HFC Bank.

[car2403]

Reply from the Information Commissioners Office upholding my Data Protection Act S.A.R - (Subject Access Request) complaint;

 

Complaint to The Information Commissioner’s Office about unfair penalty charges and your subject access request to HFC Bankfor information held as part of credit card/bank account statements.

 

Is a subject access request necessary in order to reclaim any unfair penalty charges?

No. Information from credit card/bank statements should not be needed in order to reclaim any unfair penalty charges from a financial institution.

 

Following an Office of Fair Trading (OFT) ruling about ‘unfair penalty charges’ relating to credit card accounts, the number of individuals making subject access requests under the Data Protection Act 1998 for information held as part of credit card statements has increased significantly. Although the OFT ruling only relates to credit card accounts a number of individuals are also making subject access requests for information relating to other financial services before attempting to reclaim any penalty charges associated with them. Many financial institutions are struggling to respond to these subject access requests within the 40 calendar days permitted. We are aware of this and are monitoring the situation closely.

 

What’s the best way to reclaim penalty charges?

The Financial Ombudsman Service (FOS) is the most appropriate organisation to assist you when seeking to settle disputes about unfair penalty charges with HFC Bank. The FOS can be contacted on 0845 080 1800 Monday to Friday from 9am-5pm.

 

The FOS was set up by Parliament as an independent, free service for settling disputes between businesses providing financial services and their customers.

 

Complaints about unfair penalty charges fall outside the remit of The Information Commissioner’s Office. This is why we are unable to directly assist you in seeking the repayment of these charges.

 

What will the Information Commissioner’s Office now do with your complaint about the failed subject access request?

We acknowledge that in pursuing the unfair penalty charges a valid subject access request was made to HFC Bank and although the information requested may not be needed to recover any unfair penalty charges, financial institutions are still required to provide it.

 

From the information you have provided to us it seems unlikely that HFC Bank have complied with their obligations under the Data Protection Act on this occasion as they have failed to provide you with the information to which you are entitled.

 

We will therefore be writing to HFC Bank with the details of this complaint. We will ask them to ensure that they provide you with the information you are entitled to as a matter of priority. Furthermore we will ask them to take any steps necessary to ensure their future compliance with the Data Protection Act.

 

What happens next?

We would now recommend that you contact the FOS if you wish to begin the process of reclaiming any unfair penalty charges. If when we contact HFC Bank there is any doubt as to whether they received the subject access request you sent to them we may need to contact you again. However, in most cases, and certainly where you have been able to provide us with proof of postage or receipt for your request, we would not expect to need to contact you again and you should await the receipt of the information to which you are entitled from HFC Bank in due course.

 

If you would like any further clarification having read this letter please contact our Helpline on 08456 30 60 60 or 01625 545745 if you would prefer to call a national rate number.

 

Yours sincerely

 

My complaint was nothing to do with Penalty Charges.

[car2403]

Next Equifax response as well;

 

Thank you for your recent correspondence.

 

Barclays Bank

With reference to above account I would advise that the response from this company stated that a copy of the legal agreement was sent to the acting debt agent. To obtain this information I would therefore advise that you forward your request to the agent concerned or request a copy be sent to you directly by Hfc Bank Plc.

 

I have however also passed this to our disputes department once again in order to request this matter be reinvestigated by Hfc Bank. Once a response is received in relation to this matter, you will be advised of the outcome.

 

I hope the above is of assistance.

 

Kind Regards

 

Mandy Russell

Customer Relations

 

They (as well as me!) are getting my complaints about Barclays and HFC Bank mixed up!

 

I'm off to bloody my head against a brick wall!

[car2403]

Defence to my Counterclaim recieved from Reston's;

 

1. The Claimant denies that it is indebted to the Defendant as alleged or at all.

 

2. The Claimant denies that it is indebted to the Defendant in the sums of £1,000 for damanges and £245 (plus interest) in respect of alleged or unlawful charges.

 

3. The Claimant denies that it has defaulted and terminated the account unlawfully.

 

4. The Claimant is required to notify such credit reference agecies as is appropriate with accurate reports as to hte status of the account.

 

5. The Claimant has added appropriate charges to the account in accordance with its contractual entitlement under the Terms and Condistions of the Agreement

 

My initial thoughts on the points above are;

 

1. This was to be expected, I suppose.

 

2. Interesting that they deny this, when they have no evidence to support that denial and have stated no facts that support this view either already in litigation or in this Defence to my Counterclaim.

 

3. Same as 2.

 

4. Really? Even though I can argue (using the Surleybonds basis) that you need my consent which was withdrawn on termination or on me withdrawing it. The term is part of a contract that is unenforceable because of it's form/content and causes me prejudice. (All already outlined in my correspondance)

 

5. How can charges be "appropriate" when they don't reflect their actual costs? There is also no term/condition allowing these charges to be supplied - and they can't now produce them as I've asked for them under a CCA request and a DPA SAR and none have been provided.

 

I'm assuming this will now follow the usual Allocation procedures? I'm hoping this will be allocated as a small claim, given the legal precedent in place and primary legislation involved and it's under £5k - don't fancy paying their fees if I lose.

 

Any further thoughts on this Defence to Counter, or words of encouragement would be greatly appreciated here - I'm getting a little nervous now...

 

[car2403]

On first pass;

 

- The second agreement hasn't been signed on behalf of HFC Bank

- The statements have £330 and £440 in charges on them respectively

- The Default/Termination notices clearly aren't signed true copies of the originals (they haven't even bothered to complete the financial details)

 

The main question would be, is this 2nd agreement enforceable? My Defence to the first agreement still stands, along with incorrect/unlawful Default and Termination which will also apply to this 2nd agreement by the looks of it.

 

Hi

 

JUst had a peed at the HFC agreement for £687

IT seems to be OK except for the fact that it has not been signed by the creditor.

IMO this is not of great help although it is arguablethat the agreement was not executed because the creditor did notsign i think that if you tried to use this the court would take the fact that the account was operational and the creditor suplied the funds as reson to use section 127(5) and enforce the agreement as if it were there.

As you say the APR is correct checked it twice.

Sorry can't be of more help

 

Best regards

Peter

 

Cheers, Peter.

 

I think I'll be including the lack of evidence of lawful Default/termination as a complete Defence if I'm ever challenged over this second agreement anyway.

 

Just wanted to update on this 2nd agreement (haven't mentioned it recently as I've been working on Defence/Counterclaim of HFC's claim against me first) and I'm interested why s.127(3) wouldn't apply here?;

 

(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

Does this mean that, because I signed it and they didn't, that the Court can still enforce the agreement?

 

I can still argue that this account has been unlawfully Defaulted/Terminated - same arguments as the first account - so is it worth bringing a claim against them on this one?

[Peterbard]

Just wanted to update on this 2nd agreement (haven't mentioned it recently as I've been working on Defence/Counterclaim of HFC's claim against me first) and I'm interested why s.127(3) wouldn't apply here?;

 

 

 

Does this mean that, because I signed it and they didn't, that the Court can still enforce the agreement?

 

I can still argue that this account has been unlawfully Defaulted/Terminated - same arguments as the first account - so is it worth bringing a claim against them on this one?

 

Hi

Section 127 will not preclude the court from enforcing the agreement if the only breach is that the creditors signature is missing.

As for the lack of signature on the agreement meaning that it was not executed and therefore void this is a view many people have and one i used to subscribe to, i have had to reluctantly change my mind about this and now am of the opinion that this would be of no more of a detriment to efoceing a previously functioning account than unenforceablity due to a missing or incorrect required term.

As i have said in the past if anyone can come up with case law or precident to challenge this i will be more than happy to change my mind but in my experiance there isn't any.

 

Bet regards

Peter

[pelham9]

Looking at the figures, I've used the calculator here...;

 

Loan Calculator

 

...to work out if they are right - and I don't think they are!

 

I've input £5177 as the total loan amount with 2.4% APR over 9 years and it's coming up with 108 payments x £53.28 totalling £5,754.83 and £577.83 total interest.

 

In the agreement it states £5177 total loan amount with 2.4% APR over 9 years and has 108 payments of £53.34 totalling £5760.72 and £583.72 total interest.

 

I'll obviously bow to others' opinion as I haven't a clue about correct APR and that calculator may be wrong anyway.

 

 

 

Your figures are correct!! You have stumbled onto a lawful but in my view dishonest practice that all banks use to squeeze a little extra from borrowers - in your case £5.89.

 

You have used 2.4% as the effective annual rate to get £53.28 as the monthly payment. If you work out the figures you will find that the bank is charging 2.424% effective annual rate to get £53.34 monthly.

 

So how can the banks charge 2.424% when they say that the %APR is 2.4. The answer is that they can because %APR DOES NOT EQUAL the effective annual rate. The %APR is defined as the effective annual rate approximated to one decimal place so 2.424% effective though not equal to 2.4% effective is 2.4%APR.

 

Now this is very worrying because it means that the %APR is not a useful figure to calculate actual interest charged (as you have found) ie it is not the effective rate. It was never meant to be so used - it was introduced as an approximate figure so that punters could compare different advertised loans and will include other costs of borrowing (fees etc). In a lot of loan transactions ( as yours) there are no fees etc so the %APR very nearly represents the effective annual but not quite. If you were to do %APR calculations on all the 'no other cost' loans out there you will find that the effective annual rate is always as close to 0.05% above the %APR as possible eg 13.9%APR you will pay 13 .94999...%

 

So can %APR be used to satisfy the requirement of the CCA for an interest rate. Now in my book the interest rate quoted in a CCA agreement

must be accurate and be capable of being used to verify the figures.The %APR alone is just not accurate enough to do this.

 

In your case

a) annual rate 2.424% and 2.4%APR is OK

b) monthly rate 0.1997 and 2.4%APR is OK

c) monthly rate 0.1938 snd 2.4%APR is OK see b)!!

d)2.4%APR is NOT OK.

 

The trouble is that we nearly all assume that the %APR is the actual rate charged and the banks have assiduously cultivated this assumption.

 

%APR IS NOT THE RATE CHARGED ON A LOAN.

[Peterbard]

Your figures are correct!! You have stumbled onto a lawful but in my view dishonest practice that all banks use to squeeze a little extra from borrowers - in your case £5.89.

 

You have used 2.4% as the effective annual rate to get £53.28 as the monthly payment. If you work out the figures you will find that the bank is charging 2.424% effective annual rate to get £53.34 monthly.

 

So how can the banks charge 2.424% when they say that the %APR is 2.4. The answer is that they can because %APR DOES NOT EQUAL the effective annual rate. The %APR is defined as the effective annual rate approximated to one decimal place so 2.424% effective though not equal to 2.4% effective is 2.4%APR.

 

Now this is very worrying because it means that the %APR is not a useful figure to calculate actual interest charged (as you have found) ie it is not the effective rate. It was never meant to be so used - it was introduced as an approximate figure so that punters could compare different advertised loans and will include other costs of borrowing (fees etc). In a lot of loan transactions ( as yours) there are no fees etc so the %APR very nearly represents the effective annual but not quite. If you were to do %APR calculations on all the 'no other cost' loans out there you will find that the effective annual rate is always as close to 0.05% above the %APR as possible eg 13.9%APR you will pay 13 .94999...%

 

So can %APR be used to satisfy the requirement of the CCA for an interest rate. Now in my book the interest rate quoted in a CCA agreement

must be accurate and be capable of being used to verify the figures.The %APR alone is just not accurate enough to do this.

 

In your case

a) annual rate 2.424% and 2.4%APR is OK

b) monthly rate 0.1997 and 2.4%APR is OK

c) monthly rate 0.1938 snd 2.4%APR is OK see b)!!

d)2.4%APR is NOT OK.

 

The trouble is that we nearly all assume that the %APR is the actual rate charged and the banks have assiduously cultivated this assumption.

 

%APR IS NOT THE RATE CHARGED ON A LOAN.

 

Hi

 

I agree with the above but we must remember that the prescribed term for this is the interest not the APR this can be quoted as flat rate or compund but it does not include the other items in the tcc just the iterest on the loan.

This may be of interest pun

http://www.consumeractiongroup.co.uk/forum/general/103383-agreement-enforceability-13.html

Best regards

Peter

[pelham9]

can be quoted as flat rate or compund

 

Absolutely. One of the problems of the CCA is that it only prescribes the rate of interest but not the method of application. For example a rate of 12% per annum has often been taken as 1% per month a simple interest rate method greatly to the lenders advantage - the %APR is 13 actual rate is 12.68%

 

Quoting the %APR does by implication mean that they are using a fair compound method so I welcome it in an agreement . However a %APR on its own does not define the interest rate so in my view it does not satisfy the CCA interest requirement.

 

There was a recent agreement published on this board that gave 1.53% monthly 19.9%APR. 1.53% monthly is 20%APR. - I think that this is probably OK to satisfyy the CCA but does show that banks are often 'careless' Their carelessness is almost always in their favour!

.

The %APR is not the annual rate charged - it is an approximation.

[Peterbard]

Hi

I see precisely what you are getting at, and i suspecct that this is why the regulations state that the interst on a running credit account must be presented as an anual rate not APR although the APR should also be on the agreement it is not a prescribed term.

On a fixed sum agreement however wnere there often up front fees or brokers fees etc that mut be included within the total charge for credit,in other words the cost of the loan which = iterest +fees,mandatory insurances,etc. The required term is the (TCC) APR, as even with it's inherent inacuracies it better desribes the value of the credit.

 

Best regards

Peter

 

Best regards

Peter

[pelham9]

Peter

 

Agreed. I am starting to attack them via FSA andoft

 

Pelham9

[car2403]

I've had a letter from HFC Bank; (not Restons)

 

They have included;

 

- 1 x copy of the agreement at post #7, here;

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/110146-car2403-hfc-bank-default.html#post1107155

- 1 x agreement for the second account;

- 2 x statements;

- 1 x Default Notice;

- 1 x Termination Letter.

 

All these, with personal details removed, are in the attached ZIP file.

 

Here's my initial POC for this second agreement; (more holes in this one than I original thought...)

 

1. I, the Claimant in this case, am a litigant in person and I make this particulars of claim statement from my own knowledge and experience.

 

2. The Defendant alleges that the Claimant held a credit agreement with the Defendant since 2003, numbered 76726096 – that agreement said to be a regulated debtor-creditor agreement under the Consumer Credit Act 1974.

3. The Claimant, having conducted an audit of his Credit Reference Files held with 3 Credit References Agencies, discovered that the Defendant had recorded a “Default” against the Claimant in relation to this agreement on 30 June 2004, with an original default balance of £675.00. The latest update to this entry is dated 4 September 2007, showing an outstanding balance of £708.00.

4. The Claimant claims against the Defendant, in relation to this agreement and Default, in the following terms;

CONSUMER CREDIT ACT 1974, AS AMENDED:

5. On 11 August 2007, a request was made by the Claimant under s.77 of the Consumer Credit Act 1974, (herein referred to as “CCA 1974”) to obtain copies of the originally executed credit agreements that the alleged debt refers to. In addition, statements of the account should have been provided, along with any other document referenced in the credit agreement and a request to substantiate the default information recorded. The request was sent via Royal Mail with recorded delivery, enclosing a statutory fee of £1.00. Royal Mail confirms receipt of this request on 15 August 2007, which gave the Claimant twelve working days from receipt of the request, to provide said documentation, as stipulated in Regulation 2 of The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983. The deadline to comply with the request was 31 August 2007.

6. The Defendant failed to supply any information, as requested by the Claimant, within this deadline.

7. The Claimant wrote to the Defendant on 24 September 2007, outlining this failure under S.77(4) CCA 1974 and holding it “in default” of that request. The Act also creates a criminal offence under s.77(4)(b) if this “default” continues for a further period of one calendar month – the second default date was 28 September 2007, in this case;

“If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement; and

(b) if the default continues for one month he commits an offence”

8. The Claimant contended within his letter that the agreement was unenforceable and “void” at law and that the Defaulting of the Claimant in this way was unwarranted and unlawful as no regulated agreement had been provided.

9. The Claimant contested the Defendant’s continued processing of his data as an unwarranted act and enclosed a Statutory Notice under s.10 and s.12 Data Protection Act 1998 to that effect, deemed served as of the date noted on the Royal Mail's Recorded Delivery service audit. The Claimant further outlined this contention in terms of the Defendant being able to supply an original copy of the executed agreement at a later date.

10. Also on 11 August 2007, the Claimant made a Subject Access Request, enclosing the Statutory fee of £10.00, under s.7 Data Protection Act 1984 to the Defendant, requesting, specifically; (but not exclusively, as the Claimant required access to all information relating to him under the DPA) requesting;

a) Details of all default fees and charges for unpaid items and fees charged for managing the account, paid in the last six years;

b) Copies of original Consumer Credit Act agreements for each account held in [the Claimants] name;

c) Details of all manual intervention that has taken place on accounts held in [the Claimants] name, with documentary evidence of such; and

d) Details of logic involved in any automated decisions made about [the Claimant] or [the Claimants] accounts.

 

11. The Defendant failed to reply to this request within the prescribed period of 40 days. (23 September 2007) The Claimant wrote to the Defendant on 6 October outlining this failure. The Defendant failed to reply to this letter, so the Claimant issued a complaint to the Information Commissioner’s Office, (ICO) on 15 October 2007, due to the Defendant’s non-compliance with it’s obligations under the Data Protection Act. The ICO upheld this complaint and wrote to the Defendant to advise of the complaint and requested that the Defendant comply with the Subject Access Request as soon as possible.

12. The Defendant did provide information under the Subject Access Request, in a response dated 18 October 2007, regarding the agreement in question, but failed to provide a copy of the originally executed credit agreement within that reply. The Claimant wrote to the Defendant outlining this.

13. In a further reply, dated 24 October 2007, the Defendant eventually provided an alleged copy agreement. The Defendant also returned the Claimant’s cheque for the Statutory Data Protection Act Subject Data Access fee of £10.

14. The Defendant has failed to supply completed information as required by s.77(1);

“77.—(1) The creditor under a regulated agreement for fixed sum credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of 15 new pence, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a) the total sum paid under the agreement by the debtor;

(b) the total sum which has become payable under the agreement by the debtor but remains unpaid, and the various amounts comprised in that total sum, with the date when each became due: and

© the total sum which is to became payable under the agreement by the debtor, and the various amounts comprised in that total sum, with the date, or mode of determining the date, when each becomes due..”

15. The Defendant is therefore still in default of this request under s.77(4)(a) and s.77(4)(b) as outlined in paragraph 7 of this statement.

 

16. The alleged copy agreement provided by the Defendant has not been executed - as it has not been signed by, or on behalf of, the Defendant - given the meaning of “executed agreement” provided in s.189(1) CCA 1974;

“189.(1) In this Act, unless the context otherwise requires;-

“executed agreement” means a document, signed by or on behalf of the parties, embodying the terms of a regulated agreement, or such of them as have been reduced to writing;”

 

17. In the alternative, if this honourable Court decides (which is denied) that the copy agreement has been executed given the Claimants pleadings in paragraph 14 of this statement, the Claimant further pleads as follows;

 

18. The agreement has also been improperly executed under s.61(1)(a), in that it is not signed by, or on behalf of, the Defendant.

 

19. The agreement provided has been improperly executed under s.64(5), in that the agreement does not contain statements of the debtors right of cancellation (as required by s.64(1) and Reg.2(3) of the Consumer Credit (Agreements) Regulations 1983 (SI1983/1553)) and that antecedent negotiations took place with the creditor prior to the agreement being sent for signing, that signing taking place away from the creditors’ premises making the agreement cancellable as per s.67 of the Consumer Credit Act 1974 and the regulations there under.

20. Any application for an Enforcement Order under s.65(1) of the Act, as a result of improper execution under s.64(1) of the Consumer Credit Act 1974, must be dismissed by the Court by virtue of s.127(4)(b) of that Act.

 

21. The copy agreement does not meet the prescribed form and content required by s.60(1)© of the Act, in that the Claimant was not aware of the protection and remedies available to the him under the Act.

 

22. Any application for an Enforcement Order under s.65(1) of the Act, as a result of the improper execution under s.61(1)(a) of the Act, should be dismissed under s.127(1)(i) of the Act, due to the prejudice caused to the Claimant, namely;

a) The Claimants pleadings regarding the defaulting and termination of the account, outlined in paragraph 23-26 of this statement, specifically;

i. That the account has been improperly and unlawfully defaulted and terminated; (s.88/s.98 of the Consumer Credit Act 1974 and the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1993)

ii. This improper default and termination has effected (and continues to effect) the Claimants reputation and credit rating held by credit reference agencies;

iii. The Defendants failure to reply to, or to unconditionally comply with, a Statutory Notice issued by the Defendant pursuant to s.10 and s.12 of the Data Protection Act 1998, requiring it to remove this information from its own records and to cease from continuing to process or share that information.

b) The Defendant disputes the balance of the account, as outlined in paragraph 23 of this Defence statement;

23. The Defendant disputes the balance of the account, as during the period in which the account was operating the Defendant debited charges to the account in respect of purported breaches of contract on the part of the Claimant and also charged interest on the charges once applied. The Claimant understands that the Defendant will contend that the charges were debited in accordance with the terms of the contract between itself and the Claimant and accordingly puts the Defendant to strict proof of such terms existence. The Claimant contends:

a) No such contractual provision exists to allow the Defendant to levy such charges;

b) Where there is a contractual provision that permits the Defendant to levy such charges, this provision is unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations (1999) and the Common Law of penalty because they are a disproportionately high sum in compensation compared to the cost of the purported breach; 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 are 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; and

c) Accordingly the Claimant puts the Defendant to strict proof that every charge made to the account was valid and lawful.

d) The Claimant avers that any Default Notice sent would have included these charges, invalidating that Notice due to this unlawful application.

24. The Defendant has failed to fully comply with the Claimant’s request for information to substantiate the process taken to Default the agreement, both under the original s.77 CCA request and the subsequent s.7 DPA Subject Access Request.

 

25. Accordingly, the Claimant puts the Defendant to strict proof that the agreement has been defaulted and terminated in accordance with s.88/s.98 CCA 1974 and the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1993.

 

26. Where the Defendant is unable to supply original signed certified copies of alleged Default Notices or Termination Notices, the Claimant pleads that the agreement has been unlawfully defaulted and terminated, in that, either;

a) No Default Notice or Termination Notice has been issued, the Claimant being prepared to swear on oath that no such notice was sent or received at the time of default or termination; or

b) Where the Defendant can show evidence that Default or Termination Notices were issued, such Notices are not accurate and fail to comply with s.88/s.98 CCA 1974 and the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1993, in that the Default and Termination amounts are incorrect as per paragraph 23 of this statement.

27. The Claimant refers to specific paragraphs of the House of Lords case Wilson v First County Trust Ltd [2003] UKHL 40;

Para 49;

"The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan"

Para 121;

"But the effect of the failure to comply with the requirements of the Consumer Credit (Agreements) Regulations 1983 was that the entire agreement under which FCT provided the loan to Mrs Wilson............... was unenforceable. The statutory bar on its enforcement extended to FCT's right to recover the total sum payable on redemption, which included the principal as well as interest."

Para 123;

"section 127(3) of the 1974 Act too, like sections 6 and 13(1) of the 1927 Act, was designed to protect unsophisticated borrowers. There is no doubt that they would be exposed to the risk of harassment by unscrupulous creditors if creditors could override the statute by appealing to the common law. I would prefer to say that it would be inconsistent with the statute to provide FCT with a common law remedy to redress the enrichment which Mrs Wilson has received at its expense"

Para 173;

"Parliament's intention in enacting section 127(3) of the 1974 Act was to make a loan, made under a regulated agreement, unenforceable in certain events. The courts cannot defeat that intention by allowing some alternative means of recovery."

28. The Claimant contends that the Wilson case ruling is intended to have the effect that creditors who do not have enforceable consumer credit agreements are not to be allowed to intimidate, harass and effectively blackmail debtors into paying monies that they do not have to pay by, for example, threatening to blacklist the credit records of debtors. The financial penalty for a lender not complying with the legislation is that they lose the right to any monies not already paid. The law lords considered the issue of unjust enrichment but decided that it was appropriate for the creditor to be financially penalised in this way.

EFFECT OF FAILURE TO DEFAULT AND TERMINATE AGREEMENT CORRECTLY;

 

29. Failure of a Default or Termination Notice to be accurate not only invalidates the Default or Termination Notice (Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give the Claimant a claim for damages. (Kpohraror v Woolwich Building Society [1996] 4 All ER 119)

DATA PROTECTION ACT 1998:

 

30. The Claimant contests that the Defendants continued processing of his data is an unwarranted act and that the Defendant has failed to comply with a Statutory Notice pursuant to s.10 and s.12 of the Data Protection Act 1998. (Herein referred to as DPA 1998)

 

31. The Claimants written permission allowing the Defendant to continue processing, or disclosing, personal subject data, does not exist. The Claimant also disputes the Defendants “Defaulting” of the accounts, which is visible on his Credit Reference files, for the reasons outlined above. The Claimant, therefore, considers any Default appearing on any Credit Reference Files in relation to this alleged agreement to be wholly unwarranted and unlawful.

 

32. The Claimant is afforded principled rights under the DPA 1998, Schedule 1, Part 1 ("The Principles") in relation to the manner in which data is collated, stored and processed. Of particular note, are Principles 3, 4 and 5:

“3. Personal data shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed.

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

5. Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes.”

33. In this case, the Defendant is processing data without consent. Consent in this case meaning the lawful right to process data, with permission, with the Credit Reference Agencies – that information being “publicly available”.

 

34. The claimant asserts therefore that any Default/Termination Notice amounts to a material breach of the fourth Principle of The Data Protection Act 1998.

 

35. The Claimant, therefore, commences proceedings against the Defendant under the Data Protection Act 1998 for the removal of any Default/Termination Notice, or any information relating to the agreement that will, or may, cause prejudice to the Claimant.

 

36. This is confirmed in Principle 2 of the Data Protection Act, which states:

"2. Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes."

37. The Claimant wishes to emphasise the term "specified and lawful purposes" as in ‘those specified within the contract’, and no more, and also emphasises the term "shall not be further processed".

 

38. After seeing other cases being handled, the Claimant is aware that Financial Institutions are claiming that they have a “legal right” to maintain this type of adverse entry for up to six years. When challenged, they are unable to quote the exact Statute that includes this so-called “legal right” - they in fact remain remarkably quiet when questioned about this. Only after insistence of disclosure do they eventually concede that, whilst they have no statutory right, it is “standard industry practice” but they added that they are “allowed to by Law”. After further challenges, they finally admit that unless this was a County Court issue, their term actually referred to contractual Law, but continued to emphasise that it was “standard industry practice to record default entries for six years.” In this case, no such contractual provision exists, so reliance on any contract should fail under the DPA 1998.

 

39. After scrutiny of all the relevant legislation, including the Consumer Credit Act (as amended), the various Financial Services Acts and the Data Protection Act, etc., it is clear that there is absolutely no legislation that allows a lender or supplier (e.g. the Defendant) to collate, process or distribute any other information unless there is express written permission from the data subject.

 

40. In fact, Section 10 of the Data Protection Act awards the real authority, regarding privacy of data, to the data subject, not the Data Controller. The Act is also very clear as to the rights of the data subject in respect of withdrawing permission to continue data processing and disclosure:

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

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

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

41. However, there is some exclusion provisions for Data Controllers, and Section 10 does continue with various exceptions to subsection (1) above, and these are quoted, in full, below:

“10. - (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.”

To paragraph (b), I can only presume that the Defendant has not applied to HM Secretary of State for an order allowing you an exclusion, which leaves the Defendant with the only remaining possibility of requesting an exemption under paragraph (a).

 

So, we must turn to the exemptions permitted in paragraph (a) to find where the Defendants Data Controller may invoke his perceived exemption to the Data Protection Act, namely, those listed in paragraphs 1 to 4 of Schedule 2. These exemptions are, in full, below:

“1. The data subject has given his consent to the processing.

2. The processing is necessary-

(a) for the performance of a contract to which the data subject is a party, or

(b) for the taking of steps at the request of the data subject with a view to entering into a contract.

3. The processing is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by contract.

4. The processing is necessary in order to protect the vital interests of the data subject.”

It is the Claimants contention that the Defendants supposed right of obtaining an exemption is not contained within any of these paragraphs – taking each in turn with notation to give a clearer explanation;

1. The data subject has given his consent to the processing.

That consent, as no legal agreement exists, therefore, also does not exist.

2. The processing is necessary-

(a) for the performance of a contract to which the data subject is a party, or

(b) for the taking of steps at the request of the data subject with a view to entering into a contract.

For both (a) and (b), there is no contract in existence.

3. The processing is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by contract.

40. According to the Information Commissioners Office (ICO), exemption 3 includes all other statutory obligations for which the interests of national security and welfare override personal privacy. These obligations allow for the provision of data to Official agencies and organisations, e.g. disclosure to crime prevention agencies (Police, Intelligence Services, etc), official Government agencies (DVLA, DSS, Passport Agency, etc.) and health authorities, etc., and for any other purpose not agreed within a civil contract.

The three major credit reference agencies are not Government bodies, nor official agencies, but are “for-profit” companies. None of these three agencies are listed in the appropriate Data Protection Act Schedule that names the specific organisations that are permitted any such exemption rights.

4. The processing is necessary in order to protect the vital interests of the data subject.”

42. With reference to the ICO again, this is interpreted as “anything that affects the data subject as a matter of life and death”. This clause is included in the Data Protection Act to permit data, like medical records or contact details, being disclosed in emergency situations. The Claimant does not believe that this case could be described as anything like a matter of life or death.

42. So, it is clear to see that there is neither statutory provision permitting the Defendant to assume continued processing rights of the Claimants data at his discretion, nor any exemption. The Claimant can then only assume that the Defendants is relying on the Common Law – as already discussed, above, no such contract is in existence.

 

43. The Claimant argues, therefore, that due to the non-agreed disclosure of personal data to third parties by the Defendant, without express written permission from the Claimant, that the Defendant has committed a criminal offence under s.35 DPA 1998.

 

44. The recording of “Default” information by the Defendant, without consent, against a credit file without having an agreement regulated under the CCA 1974, or a legal contract, or any processing by the Defendant of that data, in any manner, which would be unfair or inaccurate or which in any way, would breach The Data Protection Act 1998.

 

45. The Claimant requires that the Defendant cease from processing such data, or else that the Defendant does not begin to process any personal data of which the Claimant is subject insofar as that processing involves the communication or passing of personal data of which the Claimant is the subject to any third party and insofar as the said data relates wholly or in part to the implementation by the Defendant of alleged defaults or contractual breaches, or breaches contrary to The Common Law.

 

46. The Claimant argues that the processing or continued processing by the Defendant of the said data will affect the Claimants credit rating and reputation and cause substantial damage and/or substantial distress to the Claimant and other family members in addition to that which has been caused to date. And that as the processing of the said data in the way referred to in this Claim would violate both the Principles and Data Subject’s rights of The Data Protection Act 1998, to do so would be both unwarranted and unlawful.

 

47. Additionally, the claimant requests an order from the Court under s.14(1) (for the erasure of the incorrect information, held by the Defendant) and s.14(3) (for the blocking or erasure of the data passed to Credit Reference Agencies, by the Defendant) of the Data Protection Act 1998, for the removal of any Default or Termination Notices and any other information relating to this agreement, that may cause prejudice or further damage to the Claimant;

“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.

14. – (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.”

 

48. The Claimant further claims the Court fee of £65.

49. The Claimant therefore claims against the Defendant in the terms outlined in these particulars of claim and seeks;

49.1. Substantial damages from the Defendant to the value of £1,000 for the legal reasons outlined in Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 and Kpohraror v Woolwich Building Society [1996] 4 All ER 119;

49.2. An order from the Court under s.14(1) of the Data Protection Act 1998 for the removal of the Default Notice and any other prejudicial information from all credit reference agencies;

49.3. Costs, at the discretion of the Court

Statement of truth;

I, the Claimant, believe all facts stated to be true.

 

Signed,

[car2403]

N1 is in the post to my local Court for this 2nd claim...

[car2403]

Claim 2 issued; (me -v- HFC)

Issue date - 20 November

Served date - 22 November

Response date - 6 December

[car2403]

Claim 1 update; (HFC -v- me)

 

AQ (N150) received, has to be returned by 11 December.

 

The Notice of Transfer of proceedings has been sent to the wrong Court - it's gone to Newcastle, when it should have gone to Morpeth. (They wrongly have my address as Tyne and Wear on the Claim form, but this isn't the address I submitted with my Defence/Counterclaim - this also happened to me with one of my charges reclaim)

 

Any advice on completion, specifically any special directions I should ask for would be much appreciated.

[car2403]

Question on Claim 1;

 

I'm having an interesting convo with JonCris on the main CCA thread;

 

I'm not saying I don't understand your point, JonCris - I even acknowledge it was a good one - all I'm saying is it is a lottery whether the Judge will know his A from his E and apply CPR correctly.

 

Actually, in my claim with HFC Bank, I've qualified what I've submitted with this;

 

 

 

And on it goes.

 

Actually, you've got me thinking on this case now - I can apply an Application Notice to have the Claimant's claim struck out because it isn't particularised properly and shows no chose of action in law and ask the Court to continue on a Counterclaim basis only. In fact, they've also only submitted a simple denial of my Counterclam, without offering details or authority for why they deny, so I may be able to get their claim against me and their Defence against my Counterclaim struck out!

 

What I've done, in effect though, is to allow the Court to continue with the case as it stands despite the POC being insufficient if the Judge disagrees with my Application Notice - and in managing my Defence/Counter in this way, I won't be panicking to submit a full Defence quickly, as I've already done it.

 

The problem here is that Gaz wouldn't have known any of this (I'm assuming, as he may be a qualified Lawyer) but I just wanted to make sure he is aware of all the options available to him and then he can make a decision as to how to progress his claim.

 

I think we're both on the same page as to what should happen, JonCris, but I would argue you should always offer that important "in the alternative" statement in case the Judge doesn't see it your way.

 

It's conversations like this that make you think laterally about cases like this though, so thanks for getting me thinking about mine as I was happy to go to trial over this - but that may not be necessary if I play my cards right now.

 

How do you think this would go down, given what I've said here? Is it worth paying the Application Notice fee (£40, I think?) to see if I can convince the Court to see it my way, or should I leave it until the full trial hearing to really stitch them up good and proper?

 

 

I've also attached the AQ I've prepared - any feedback would be appreciated. (I am prepared to send an Application Notice, as above, with this AQ)

 

EDIT - attaching the AQ doesn't really work... I'll find another way of posting it up.

[caro]

I spotted this on the CCA thread.

The Particulars of Claim are summary in nature and do not disclose sufficient grounds for bringing any action. Despite this, the Defendant pleads as follows, but seeks to reserve the right to amend this Defence in such circumstances that the Claimant provides more detailed particulars at a future point in these proceedings;

If you believe that the POC is insufficient why are you submitting a defence instead of applying for it to be struck out? If the judge agrees s/he may allow the claimant to amend the POC at which point you would have the opportunity to enter a full defence. You must check very carefully that the POC really aren't sufficient (or as it's called embarassed) to do this.

[pt2537]

I spotted this on the CCA thread.

 

 

If you believe that the POC is insufficient why are you submitting a defence instead of applying for it to be struck out? If the judge agrees s/he may allow the claimant to amend the POC at which point you would have the opportunity to enter a full defence. You must check very carefully that the POC really aren't sufficient (or as it's called embarassed) to do this.

 

i tend to agree to a point

 

in these cases where the POCs are not sufficiently particularised i tend to lay out everything relevent in my defence as to why i cant plead

 

i also do ask the judge to consider striking out the claim, but ive found that DJs are unlikely to be too clued up on consumer protection legislation so i tend to feel its best to spell it out to them

[JonCris]

Caro I agree & here's what I said on the other thread

 

car2403

 

I understand what your saying & to a point I agree. However if you submit my argument then the judge must return to the other side before proceeding then if they do submit an amended claim you can submit a detailed defence.

 

My point is that it brings their action to a stop until they amend their claim accordingly in which case they should supply an enforceable agreement as part of it & if they don't you can make a part 18 request.

 

Of course all of this is based on the assumption that they haven't already particularized their claim at the outset

 

To add to the above I doubt the court will strike their claim out however they will be required to provide all of the necessary documentation to support their action particularly an enforceable agreement. Failing which you would have even stronger grounds to strike out their claim which the court cannot ignore.

 

Also it should be remembered that the court can & probably will ignore their non compliance with sec 77-79 of the CCA as part of their action will be to have the court rule that their breach is not prejudicial to this action

[caro]

I am more than happy to be corrected as this minefield is frankly more than I can understand or cope with. I periodically try to get my head round it, but it's such a complex area, and open to such wide interpretation that I don't generally feel competent to advise on it. It seems a very risky area to experiment with unless OP understands fully the implications of there actions, especially if untested theories don't work.

 

Thanks to both for adding to my bit.