Defaults - background, removal methods, challenges and taking a claim to Court

[Hopster]

Subbing ? Watching ? Same thing ?

[basa48]

I have a problem with a catalogue company.

 

I have CCA'd them and received a scrap of paper with my OH name address and signature on, nothing much else. Certainly no prescribed terms whatsoever.

 

I wrote and explained this was not a credit agreement and they eventually replied in writing (twice I might add) admitting they had no credit agreement for the account, would not attempt to enforce it and not process any further subject data with third parties.

 

I was quite happy to let this lie until a month later I received a Default Notice!!!

 

Obviously I sent off a 'letter before action' insisting they remove the default or I would take court action within a specified time scale.

 

This now has less than a week to run and I am in preparation of a particulars of claim.

 

Apart from asking for the agreement to be declared unenforceable and for the credit file to be 'repaired', I intend to ask for damages for damage to my credit file equal to the cost of the goods received to date and return of all interest paid to the account.

 

At this stage I am unsure as to how much depth to go into in my PoC, i.e. do I start quoting case law and do I put the case in 'small claims' or 'fast track'?

 

The amount claimed will be far less than £1000.

 

Is there anywhere here I can obtain a little advice on preparing the PoC?

[pt2537]

personally, i never plead the level of damages, purely as they are to be assessed by the court in reallity.you do not quote case law in your pleadings, that is for your skeleton argument not the pleadings,

 

why do you see damages equivalent to the cost of goods? i see no merit in such an argument, certainly no case law supports this view, you are selling yourself short i feel on that argument

[basa48]

personally, i never plead the level of damages, purely as they are to be assessed by the court in reallity.you do not quote case law in your pleadings, that is for your skeleton argument not the pleadings,

 

why do you see damages equivalent to the cost of goods? i see no merit in such an argument, certainly no case law supports this view, you are selling yourself short i feel on that argument

 

OK so I just stick to the point that they haven't provided a credit agreement and admitted they do not have one. The consequence being:

 

They cannot enforce

They cannot default

They cannot charge interest (from day 1)

 

I then request declaration of unenforceability, remove default, reclaim interest and leave damages (for the DN) to the court.

 

Is that about it?

 

PS: setting default damages at value of received goods was a suggestion from another forum!

 

PPS: At the moment no defaults appear on my credit file but it is my OH's account and she still lives with me!! Is that material as the potential for damage is there none the less.

 

PPPS: Whilst I have issued a letter before action, I have not attempted resolution direct with the catalogue. Should I do that first before N1?

Edited May 27, 2009 by basa48

[pt2537]

OK so I just stick to the point that they haven't provided a credit agreement and admitted they do not have one. The consequence being:

 

They cannot enforce

They cannot default

They cannot charge interest (from day 1)

 

I then request declaration of unenforceability, remove default, reclaim interest and leave damages (for the DN) to the court.

 

Is that about it?

 

PS: setting default damages at value of received goods was a suggestion from another forum!

you lose sight of the most important point here

 

did you ever sign an agreement? if no, then s61(1) CCA 1974 was NEVER complied with which is fatal to the enforceability of the agreement

[basa48]

you lose sight of the most important point here

 

did you ever sign an agreement? if no, then s61(1) CCA 1974 was NEVER complied with which is fatal to the enforceability of the agreement

 

Well this is what was sent as an agreement, which I disputed. They then admitted they had no credit agreement.

 

It contained only my OH's address and signature. No creditor signature.

[pt2537]

oh i see, so there was a signed agreement but s61(1)(a) Clearly wasnt complied with as there are a) no prescribed terms in the document and b) no terms which comply with schedule 1 & 2 of the agreement regs,

 

this is fatal to the agreement and you have grounds to challenge this document

[basa48]

oh i see, so there was a signed agreement but s61(1)(a) Clearly wasnt complied with as there are a) no prescribed terms in the document and b) no terms which comply with schedule 1 & 2 of the agreement regs,

 

this is fatal to the agreement and you have grounds to challenge this document

 

Well yes, I always recognised the 'agreement' was unenforceable, which is why I am threatening litigation after the default notice.

 

Hence my queries here http://www.consumeractiongroup.co.uk/forum/show-post/post-2194834.html

[basa48]

bump

[jeccapf]

excellent thread that I'm following with great interest, however, question, if anyone can point me toward a thread dealing with the CRA's role in all this, my understanding is that they can only hold information that is active contract or in the public domain, but in my case they replied to this with

 

"With regards the revocation of your permission for Equifax to continue to process your data, it is our view, also shared by the Information Commissioner's Office, that we are able to share account data between lenders and the Credit Reference Agencies for the duration of the contract and for 6 years beyond on the basis of paragraph 6 of Sch 2 of the Data Protection Act.

 

This states "“The processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case because of prejudice to the rights and freedoms or legitimate interests of the data subject.”

 

In your correspondence you also refer to Section 10 of the Act which, as you state, awards the data subject the right to request that the data controller discontinues the processing and disclosing of his/her data. Section 10 sub-paragraph (1)(a) and (b) states that the processing of such data must be likely to cause the data subject substantial damage or substantial distress, and more importantly that such damage and distress must be unwarranted.

 

We do not believe that you have established that, or provided specified reasons why, our continued processing of your data has caused you substantial damage or substantial distress and that is or would be unwarranted. We feel that it would be irresponsible of Equifax to remove your credit history information, as this may result in you being unable to obtain credit, or being given credit which you would otherwise not have been able to obtain, which may in turn lead to over-commitment."

my immediate thoughts on this are that I am being disadvantaged with no opportunity to put my side of the story, and - as far as the final paragraph goes - how dare they assume the position of guardian of MY ability to decide if I'm over committing myself, this is NOT their role, its between me and the lender and thier input into it should only form part of that argument.

Anyway, can anyone point me toward a thread that deals with how to confront the cra's to deal with this issue?

 

 

 

[car2403]

There are lots of trains of thought on the CRA issue - here's mine;

 

The CRA processes whatever the Creditor shares. If the Default recorded by the Creditor is inaccurate, or wrong, for whatever reason, your beef lies with the Creditor, as the Data Controller under the DPA. Challenge the Creditor, then, not the CRA.

 

Now, the CRA is a Data Controller under the DPA, also. The CRA doesn't need your consent to process your data, so long as they have a legitimate reason to process it. Whether credit scoring is a legitimate reason is questionable, IMHO, but the Courts/ICO seem to think so. All these issues just complicate a dispute between Debtor/Creditor, if you ask me, so I'd challenge the **Creditor**, rather than banging my head against a brick wall that is the CRA.

 

There are a lot of threads around on these issues, though.

 

My 2p worth...

Edited June 8, 2009 by car2403
Creditor, not Debtor... d'oh!!!

[jeccapf]

Thanks for that Car, I am challenging the creditor as well, but I just wondered what the position was with the CRA's (they're getting up my nose with their holier than though attitudes to my life) and I do wonder if challenging the CRA's may become the new "bank charges" case

[basa48]

Can I dive in on this thread for some advice regarding a claim I have put in against a well known shopping giant .. er CCA

 

I have put in a claim against them citing s.59 and s.61.

 

Point is I have asked for a declaration of unenforceability, return of specified default charges, removal of a DN and unspecified damages for trashing my credit file but the court have issued the claim for a specified amount.

 

How if (when) I get the judgment do I get the DN removed and my damages?

 

Do I issue an application before or after the judgement or what? What is the process?

[car2403]

Oh dear.

 

Do you have a thread, basa48?

[GhostDebt]

Interesting thread very useful information.

[basa48]

Oh dear.

 

Do you have a thread, basa48?

 

Sorry, no, not for this episode (I do have one for my Egg battle, but that's a bit quiet for now). That's why I posted here.

 

The "Oh dear" worries me !

 

I've just realised I started discussing this issue in post 77 of this thread. Sort of going it alone since then (following a bit of good advice from PT)

Edited July 22, 2009 by basa48

[car2403]

Sorry, no, not for this episode (I do have one for my Egg battle, but that's a bit quiet for now). That's why I posted here.

 

The "Oh dear" worries me !

 

I've just realised I started discussing this issue in post 77 of this thread. Sort of going it alone since then (following a bit of good advice from PT)

 

Ok, then. The s.59 bit worries me. That section effectively says that the agreement itself doesn't have a legal basis, as it was pre-contractrual in nature and can never become a regulated agreement. The reason I'm worried about it is that, if the arguments on that section are accepted, the agreement will never have existed, meaning you were never entitled to the benefit of the advances made under it. Could mean you have to repay everything you've ever borrowed from the creditor, as you weren't entitled to draw on those funds.

 

You really need a thread, as this is way off topic here and I am probably confusing and causing concern unnecessarily - it's just that it jumped out at me when I read that.

[basa48]

Ok, then. The s.59 bit worries me. That section effectively says that the agreement itself doesn't have a legal basis, as it was pre-contractrual in nature and can never become a regulated agreement. The reason I'm worried about it is that, if the arguments on that section are accepted, the agreement will never have existed, meaning you were never entitled to the benefit of the advances made under it. Could mean you have to repay everything you've ever borrowed from the creditor, as you weren't entitled to draw on those funds.

 

You really need a thread, as this is way off topic here and I am probably confusing and causing concern unnecessarily - it's just that it jumped out at me when I read that.

 

I see your concern and I have always wondered about using s.59, however....

 

If it comes to that direction of argument I would argue the creditor was happy to proceed without said contract (i.e. gifted me the monies) whilst I probably repaid everything I borrowed (plus interest) except for what debt remains.

 

Too late to start a thread for this as the request for judgement by default (no acknowlegment from creditor) is in awaiting judgment.

 

Don't think I can change it now.

[car2403]

I see your concern and I have always wondered about using s.59, however....

 

If it comes to that direction of argument I would argue the creditor was happy to proceed without said contract (i.e. gifted me the monies) whilst I probably repaid everything I borrowed (plus interest) except for what debt remains.

 

Too late to start a thread for this as the request for judgement by default (no acknowlegment from creditor) is in awaiting judgment.

 

Don't think I can change it now.

 

Well, there's still the unjust enrichment point of view from the Creditor to consider.

 

Let's hope you get Default Judgment, but then I'd expect a set aside application on the basis that the claim is flawed. Sorry.

 

Might be best to start a thread, anyway, then.

[basa48]

Well, there's still the unjust enrichment point of view from the Creditor to consider.

 

Let's hope you get Default Judgment, but then I'd expect a set aside application on the basis that the claim is flawed. Sorry.

 

Might be best to start a thread, anyway, then.

 

OK I am confusing the two claims I have in. This one under discussion hasn't reached 14 days for acknowledgment/defence. That's this Friday.

 

Can I renege on that part of my claim as I did cite s.61 as well?

[car2403]

You could amend and remove the s.59 part, yes.

[basa48]

You could amend and remove the s.59 part, yes.

 

I'll do that, if it goes to a hearing.

 

I've started a new thread here: http://www.consumeractiongroup.co.uk/forum/general-debt-issues/210837-basa48-tesco.html

[Dipply75]

Wow, excellent thread, is goign to be so useful to all those who got slapped with Defaults for 'daring' to actually exercise a few legal rights against these bullies.

 

Defo deserves to be a stickie!!!!

 

I will be tackling a few defaults and need all the help I can get.

 

Thankyou Car2403

[basa48]

Well I got my default judgment. Now awaiting the set-aside!!

 

How long is decent to wait before a warrant of execution?

 

Think I'll try the ICO for the DN removal first. I do feel I have a good case as there is no signed agreement and thier own web site says they need an agreement to process.

[passwordlocked]

Where do you stand if a default notice was never served and your were defaulted without warning or any intent of default notification ?