car2403 -v- GE Capital Bank (Default removal)

[davefirewalker]

Sorry about that car.........

 

It looks like the legal fraternity are on the side of the creditors.....always have been and always will be. But in your opinion was he being "just" and logical in his approach, if he was then we have learned something valuable, if not its just another bad judgment by a biased and creditor friendly judge

 

at least you didnt get stuck with charges

 

But it is our job to push them and to push the envelope and see what can be achieved with a little tenacity. We need a popular uprising against lame judgments like this.

 

Dave

[foolishgirl]

Just picked up this thread from Finlander's Experian.

 

So sorry you didn't come out better car, you must be disappointed. It seems so unjust that GE can just turn up without the proper paperwork & STILL win!

 

However if it's any consolation, MOH (unlike me,well versed in contract law) always says this is a possibility with cases like this particularly if you get an older judge. At least you didn't lose anything (except maybe a bit of your pride) & you've gained heaps in knowledge & experience.

 

Get back in the ring...

[car2403]

Ok. here's some more info to whet your appetite and hopefully put this Judgment in a little more context.

 

The Judge was clearly "creditor-bias", IMHO. Why? Well, this is the same Judge that I had against O2 - you can read the debarcle that was that decision, where I was "forced out of the Court system" by this District Judge, here; (post #181 at the top of page 10)

 

http://www.consumeractiongroup.co.uk/forum/telecoms-mobile-fixed/111666-car2403-o2-wescot-dca-10.html#post1565156

 

I had exactly the same experience here. While the Judge was eager to be seen to be "listening" what I was saying and my argument against GE's process used to Default the account, he clearly wasn't "hearing" what was actually been said. Having said that, I do think I convinced him of the inaccuracy of the information, which is why he gave GE a get-out option midway through the hearing - GE, being switched on, then came up with the CRA reciprocity agreement argument, stating they had a duty to maintain the record and as I couldn't doubt it's accuracy, the Judge couldn't order it's removal. The Judge just accepted this, without question, despite me highlighting the fact the "agreement" relied on doesn't include a "we can charge you £X when you default" clauses! I actually thought he was leaning my way when he mentioned CPR regarding written contracts in Court, but again GE's solicitor pushed the issue and the Judge backed down on that too.

 

He also admitted that he didn't know Consumer Law, so would rely on GE's Solicitor's interpretation to "assist" him in understanding my claim - I was at a clear disadvantage. A good example of this was Wilson -v- FCT. The Judge wasn't aware of the case, (probably out playing golf, rather than reading that Judgment, to be fair) so again relied on the Solicitors interpretation of the fact that the contract still has "legal effect" outside of enforcement under the CCA, meaning that GE could still process and share my data.

 

When he mentioned that the agreement should be binding on me, because I'd made payments in accordance with it previously and hadn't doubted the legal basis on which it was made before, I mentioned CAG and that I had only recently learned of the legal status required by CCA agreements - as with my O2 claim, this seemed to scare him a little, especially when he found out of the interest in this thread. I also mentioned that I just discovered the legal argument of mistake and put to him that I had made a mistake in law by making payments under an agreement that couldn't be enforced without a Court Order. If the agreement was irredemably unenforceable, this would have been the point that I would have won the case.

 

So, even though the Default Notice was faulty, the charges were unfair, (even under the Judges own opinion that the OFT view of £12 would be fair) and the DPA/ICO guidelines on applying the Default with the CRA were all in my favour, the Judge still folded under pressure from GE and I lost.

 

This sounds like I'm on a downer - but I'm not! If you review my other threads, you'll see that this one is actually quite a small issue in comparison with the others. I've even had HFC write off £5k and remove my Defaults, because I found CAG! Admittedly, you can't win them all, all the time - but if I had to lose one case, just to prove that the Judge Lottery doesn't always work in your favour, I would have chosen to lose this one.

 

The impact? I now have a very small value satisfied default on my CRA file for the next 6 years. I'm sure I can live with that, especially as I managed to avoid GE's costs, which would probably have been more than the damage this default will be causing me over that time. Also, I haven't considered challenging the CRA's right to continue sharing for 6 years yet, so this one might just not be over, albeit GE has won the battle, but not the war!

 

[foolishgirl]

Oh car, that's CRIMINAL!! I would be so p*****d off!

 

Don't know a lot about appeal leg. but if he admitted he was relying on GE's solicitor for clarification on points of law, have you not grounds for appeal? Or at the very least report him to authorities. High Court judges may rule on law but these little CC judges sometimes know little more than Joe Public yet seem to think they have the right to administer justice with high hand.

 

I think I would try & find out which areas this judge patrols & take my next cases thro' another court where he won't be.

[car2403]

The really frustrating thing is that the Judge who heard the CMC was in the other Court, just next door, when all this was going on - if the Coin had flipped in another direction, I would have had that Judge again and would have won hands down, plus he would probably have awarded costs to me as well.

 

Luck of the draw.

[knoxvillain]

Instead of raising actions for removal of the default would it not be better to take another angle where you know a creditor can't provide a CCA to raise an action for enforcement of the CCA request pointing out the offense already committed and asking the judge to enforce your CCA request and whereby the lender cannot comply because they don't have it, to order the removal of all account info from your credit history? Just a thought.

[car2403]

Now I've had some serious reflection on this Judgment, I consider it all wrong.

 

The Judge looked at the OFT test case result that bank charges are not penalties in contract law - in fact, the OFT test case decided that the charges under the revised terms and conditions applied by the banks are not penalties. This has a massive impact - I'm just annoyed I didn't realise it on the day of the hearing now. The Judge said that all default charges are not contractural penalties, so didn't even consider my argument on it. That's a serious flaw. If he did, GE would have to prove the wording of the term allowing them to charge the penalties, or show that they weren't contractual penalties at all - IMHO, they couldn't do either of those things.

 

I think I'll draft a nice letter to Salans and point this out to them - if they have any sense, they will remove the Default. If they don't, I may just consider appealing this decision, based on this information.

Edited August 2, 2008 by car2403

[car2403]

Taken from Small claims

 

Appeals

 

 

 

You may appeal against a judgment in the small claims track only if the court made a mistake in law or there was a serious irregularity in the proceedings. If you want to appeal, you must file a notice of appeal within 21 days. A fee is payable

 

Relying on the OFT Test Case Judgment must be a mistake in Law or serious irregularity?

[tinkerbell20]

But isn't he OFT Test Case judgement a High Court Ruling? If so the DJ is ok to follow it. :-|

[car2403]

But isn't he OFT Test Case judgement a High Court Ruling? If so the DJ is ok to follow it. :-|

 

Agreed, however, how can the DJ follow it when the Banks T&C's can't be compared to GE's, as they don't have the page with the original term on it to demonstrate that it's similar. (I have a feeling it probably isn't)

 

The onus would be on GE to prove the term wasn't a penalty, which they escaped in the hearing because the Judge took the TC Judgment for granted.

 

I could be wrong, so I'm happy to be countered on it, but I think this could be a decent reason for appealing? :idea:

[foolishgirl]

 

He also admitted that he didn't know Consumer Law, so would rely on GE's Solicitor's interpretation to "assist" him in understanding my claim - I was at a clear disadvantage. A good example of this was Wilson -v- FCT. The Judge wasn't aware of the case, (probably out playing golf, rather than reading that Judgment, to be fair) so again relied on the Solicitors interpretation of the fact that the contract still has "legal effect" outside of enforcement under the CCA, meaning that GE could still process and share my data.

 

 

 

 

'You may appeal against a judgment in the small claims track only if the court made a mistake in law or there was a serious irregularity in the proceedings'

 

Would you not have a better chance with this on the grounds of irregularity car? It's hardly 'regular' proceedings to actually admit you know little about Consumer Law, have to rely on the opponent's representative for interpretation of case law & then presume to sit in impartial judgement on the matter in hand is it??!

 

In my book it's certainly not justice - ah, but just heard braying!

[tinkerbell20]

Agreed, however, how can the DJ follow it when the Banks T&C's can't be compared to GE's, as they don't have the page with the original term on it to demonstrate that it's similar. (I have a feeling it probably isn't)

 

The onus would be on GE to prove the term wasn't a penalty, which they escaped in the hearing because the Judge took the TC Judgment for granted.

 

I could be wrong, so I'm happy to be countered on it, but I think this could be a decent reason for appealing? :idea:

 

If the prescribed terms hadn't been present on the page with your signature do you still think that judge would have ruled for the Lender. Or do you think it was because it was the so called standard terms & conditions missing? I agree with foolish girl the grounds of irregularity would probably be preferable here.............

[car2403]

Had the prescribed terms been missing, it would have been irrevocably unenforceable.

 

As it stands, it was merely improperly executed, as it contains the prescribed terms.

 

My challenge was against the Default - arguing the charges applied were contractural penalties, or unfair under UTCCR.

 

The Judge ignored the fact the agreement was only page 1, (with the prescribed terms/signatures on) and didn't mention agreeing to apply any charges.

 

As the charges were applied, outside of the agreement, the Default is unlawful.

 

The Judge decided that GE couldn't have made such a mistake, regardless of not having the other 3 pages of the agreement, and refused to order the removal of the Default under the CCA/Data Protection Act, as a result.

[Blossomandebony]

Hi, Car,

 

Was the hearing tape recorded? If it was, could you ask for a copy?

 

I guess it wasn't, because surely a dj wouldn't offer up such a lousy judgement if he knew he could be pulled up on it?

 

I've been to three hearings and only one, (I think), was recorded - manually, by an assistant sitting in the corner of the room - that was a hearing for summary Judgement.

 

If hearings are not routinely recorded, can you ask beforehand for a recording to be made? Does anyone know?

 

BAE

Edited August 3, 2008 by Blossomandebony

[car2403]

By rule, generally, small claims track hearings don't have a recorder sitting in on them, nor are they recorded - I've been to lots and none have been.

 

The issue here is I only have 21 days to issue any appeal, so time is running out. I don't want to rush in to this, on the other hand, so I'll have to sum up my thoughts over the next week, or my application could well be time barred.

 

Any advice on how/where/when to appeal a SCT Judgment would be most welcome at this point - as this default is quite small and now satisfied, it may just not be worth the hassle, which is something I'm finding difficult to swallow at this point. (I also don't really have the time to prepare this in sufficient detail, at this point in time, neither)

[freakyleaky]

This from HMCS site. I hope it is of some use.

 

How to Appeal

 

If you are unhappy about the decision made by the Judge in your case, you may be able to appeal against the decision to a Judge in a higher court.

There must be proper grounds for making an appeal and there are strict time limits within which to do so.

It is not possible for Court Service staff or other Government officials to review a judgment made by the courts. This is because the judiciary are entirely independent and must be free to decide the outcome of cases without fear of interference from Government or its administration.

There are several ways in which you may challenge magistrates' decisions. The most appropriate method will depend upon the type of case and its particular circumstances. This is intended to be a basic guide. Before you lodge an appeal, you are strongly urged to seek legal advice as to the procedure, merit and cost.

Appeals against the decision of the magistrates' court in criminal cases are heard by the Crown Court. The appeal is made to the magistrates' court and the papers sent by the magistrates' court staff to the Crown Court.

For Crown and county courts you can appeal both civil and criminal cases, but it would be necessary to seek permission or 'leave' from a judge before an appeal can be made against a conviction in a criminal case.

Applications to appeal, and for leave to appeal against decisions made by the Crown Court are dealt with by the Court of Appeal Criminal Division.

Appeals against the outcome of a hearing in a county court or a High Court, on the other hand, are mostly dealt with by the Court of Appeal Civil Division.

Both these Courts of Appeal are based in the Royal Courts of Justice, at the Strand in London. Staff at the Court of Appeal will be happy to offer procedural guidance they are not permitted or trained to give legal advice or discuss whether you can or should appeal. For legal assistance a solicitor should be contacted. Alternatively, you may prefer to contact a Citizen's Advice Bureau or other advice agency, where advice is generally provided free of charge.

[car2403]

Right, I haven't had time to prepare a full appeal on this case and I'm now out of the 21 day time frame. As I'm unlikely to be able to appeal this within the next few weeks, due to still working away from home, etc, this is how I'm going to approach it.

 

I'm going to write to Salans to suggest they "encourage their client to remove the Default", as I intend to appeal the Judgment on the basis that the Judge decided the charges applied could not be contractural penalties on the basis of the preliminary Judgment in the OFT test case. In fact, in the OFT's Q&A from 14 August on the current state of that issue, this is what is said;

 

4. Why was the second preliminary issues hearing necessary?

 

Because the April ruling was limited to current charging terms, a further hearing was held in July to determine whether the charging terms in the banks' historical and basic bank accounts (and certain other non-mainstream current accounts)

• can also be assessed for fairness under the UTCCRs, and

 

• whether they are capable of being penalties at common law.

The current terms and conditions are those in force as at the date of the hearing that commenced on 17 January 2008. Historical terms and conditions are a representative selection of previous terms and conditions that are in dispute in the county courts between individual customers and the banks. Non-mainstream accounts include for example student and under 18 accounts.

We do not yet have information about when the judgment from that hearing will be handed down.

 

As the Judge didn't consider my argument that GE's charges are penalties, based on this preliminary OFT TC Judgment, I will be arguing that there has been a precedual irregularity, in which case I will be appealing.

 

I will give GE 7 days to confirm they will remove the Default, (especially as the Judge considered - probably obiter now, but it's worth reminding them - that the Default could be inaccurate under the Data Protection Act, but he couldn't consider the test of fairness under the UTCCR, as it was a question on the price to be paid for the service) or I will appeal the Judgment 7 days later.

 

Ultimately, I could do without the hassle of paying another £100 in fees for an appeal, having to request leave to appeal as I'm out of time, (but being a LIP and working from home, not having the chance to seek advice prior to appealing would be a good reason for granting the leave to appeal, IMHO) as all I want is the Default to be removed.

 

If GE don't go for it, I will appeal, in which case I now have a few weeks to prepare. Also, if they don't agree to remove it, I will be making a formal complaint to Salans that their representative on the day mislead the Court as to the impact of the OFT TC Judgment on the hearing - I'm sure, as an officer of the Court, that won't (hopefully!) sit well with him, or Salans, and that might convince them to keep me quiet.

 

In either case, this isn't over for me...

[foolishgirl]

Delighted to see you're going ahead with pursuance car. These people need it demonstrating to them in no uncertain terms that big muscles might win a battle but not necesarily the war.

 

It's a pity you're out of time on the appeal but your approach to GE & Salans seems well thought out. IMO the DPA/UTTCR issue might put enough doubt in GE's mind re. the default status, not sure that Salans would bother too much about an official complaint - not met a solicitor yet who does - but it's worth a go & as you say, you have a fallback position.

 

Good luck - will be watching with interest...

[tinkerbell20]

me too

[Hullabaloo27]

 

So...

 

I LOST!

 

There be no order as to costs.

 

I'm not reeling from this, as it's been a massive learning curve - along with my other thread.

 

I'll post my thoughts up over the weekend, but I want to get your views first.

 

Having read through this whole thread with great admiration for your effort, guile and determination, I am sickened that the judge has seemingly completely ignored their own 'rules' for the Defendant to acknowledge / file / return correspondence by the court's own deadlines. I'm no banana, but its a complete fabrication of our supposed justice, that allows someone to flagrantly ignore the rules and be rewarded for it. Had that been you (or any of us), the courts would be so heavy on us it would be unbearable. (Exactly as in the cases that started the whole Bank Charges reclaiming i.e. small companies charging £10 to send a letter out a la the banks, and getting quickly stamped out)

 

I truly, truly hope and pray that you do appeal and that this travesty is overturned.

 

Good luck, your efforts have been appreciated. I also point out that this travesty will backfire on the system in one small way at least, in that it has actually galvanised my own efforts, and will shortly be pursuing my own claims along similar lines.

[42man]

Keep up the fight Car...fascinating thread....

[chris1977]

Just read the last couple of pages of this thread and I'm gutted for you Car! That said, it sounds like your spirits haven't been too dampened

 

Good luck

 

Chris

[tinkerbell20]

any update?

[car2403]

Blimey, yes, it has been a while, hasn't it...

 

Well, I've sat on my fat rump with this one and done sod all.

 

What with the credit crunch, I haven't needed credit - nor do I plan to need it - so the default I still have for this one will be a good lesson to me not to take on debts without properly considering my circumstances fully.

 

It might be a different story if I ever need to rely on credit again in the future, but this really won't take long to come off the file, so I haven't expended the energy needed to take it forward.

 

Having said that, this is one of the few default non-successes I have had along the way, so I don't see this as a "loss"...

 

I suspect I may review this Judgment when the OFT TC outcome is known - particularly as I still strongly feel that the Judge should have stayed the claim. He effectively ruled in this case that the charges applied were fair and were not penalties. That'll come in useful when the Banks lose and I start a claim to recover the penalties applied, then ask to appeal this decision in light of that claim when I win. (Ok, if the OFT TC is in our favour!)