Banks and Defaults

[peed 'orf]

Hi guys. Anyone want to chew on this one with me?

Today I have been turned down for a Bank account due to something on my credit file. I got a credit report on line, and low and behold, Nat West have given me two defaults (one per account) for not paying their unlawful charges!
Even though I wrote to them stating the account was in dispute, they had their Solicitor write to me (not Cobbetts, the other lot). I phoned and explained that every penny outstanding on the accounts were charges, and I had written to Nat West. And that I'd issued a Court claim to reclaim the charges. The nice lady backed off very quickly said she'd inform Nat West and they would not be dealing with it any further.
As they did pay up without going to Court, this would imply that I did not owe this money. Therefore, they have Deframated my character, and Slandered my name. As it's something in writing would that also be Liable?
I would very much like Bank for dinner, all veiws and suggestions wecome.
Thanks, more peed 'orf than usual!

[iancognito]

If you haven't already done so, you need to include removal of the defaults as part of your claim and not consider it settled until these have been removed.

They play havoc with your credit rating and from my experience are used more as punishment than for information, which is 'of course' the real reasoning behind your credit report isn't it :rolleyes:

I think in the early days (go on bite my head off Surly) a few people got lucky with default removals and even compensation in some cases, now the CRA's have got their act together, won the support of the ICO and without a court claim to tag it on to, default removal is one of the hardest and frustrating things to sort.

Even if it costs you to amend the claim and add default removal, I consider it worth doing.

[peed 'orf]

Unfortunatly Nat West paid up in Febraury, and the defaults were not issued untill Feruary!
Everything I've read on the other site, says "A default cannot be issued if the account is in dispute".
Also, there is still a duplicate Court Judgement (from a few years back), same case number, same amount, except ones marked as settled the other isn't. I have already disputed it and they've marked it as disputed. Who do I contact to get it removed?

[Ashley]

we have a user SurlyBonds who is an expert at these things, maybe give him a PM with a link to this thread asking him to have a look.

[peed 'orf]

Thanks Ashley, will do.

[peed 'orf]

Hi Guys, as SurleyBonds isn't about, can someone else help?

I've written to the Bank this morning, giving them 7 days to respond.

As for the duplicated CCJ, I've rang the Court, they confirm there should only be one . This extra CCJ has been on my file for 3 years, in this time I have remortgaged. Therefore possibly paying more than I should in hyped up interest .
I've asked 1st National to move it last year, they said no . And the CRA just marked it as disputed .
I'm totally fed up with all these big companies taking the Micky. What's my next step to get it removed, and for compensation?

[iancognito]

The Information Commissioner should be your first stop, they claim they will ensure all incorrect data is removed from your file, you can contact them through their website, but they are slow to respond and very busy with non compliance complaints at the moment.

The other option is court, you could take that route, make some monetary claim against them but tbh you need Surlys advice on this one if thats the route you decide to take.

[Glenn UK]

If you wish to pursue the removal of defaults then you need to be clear as to why they should be removed in a legal sense.

One of the problems is that the ICO takes the view that if you had some sort of agreement with the bank and you didn't pay up then you have defaulted.

I know this is a very simplistic view, but i have discussed this with a contact at the ICO over a number of months.

So from this as much as it grieves me to say it, the ICO will in all probability say that since the charges haven't been deemed unlawful they cannot insist the defaults are removed. i could be wrong but this is how i see it today.

IMHO the best route is the court route, however, and since you have already been paid out for the charges then the challenge would have to be dealt with under the DPA, Sec 13 i think.

If SB or anyone else has ideas id be pleased to hear them. One of the problems of going this route is that the court could decide this is a matter for a Sec 8 hearing which leaves the claimant open to costs should they loose.

It will also be the case that the removal of the default based on the unlawfulness of the charges may not actually win because the charges haven't been determined to be unlawful as yet.

I am about to go on holiday for a week but will give this some thought, but for future reference anyone with defaults would be wise to make sure they are tied to a claim for unlawful charges since this gives a high probability of removal with little or no risk involved IMHO.

Glenn

[strangewayofsavin]

Hi Glenn, what I think PO is stating, is that she was reclaiming charges on 2 accounts, whilst reclaiming she had extra charges levid on those accounts, which she added to her claim automatically disputing the outstanding amounts. the bank settled both claims out of court, and after paying out entered the defaults with the CRA's. which in my mind is blatent abuse of her personal details in line with the banking code & S 4.6 & S 13 of the DPA, and/or a fraudelent act, and may be liable for defemation, I beleive a complaint to Trading standards, the OFT, and the FSA may be in order, and if proved to be criminal, IMPO they should lose their liscence, or get a whopping great fine.

[peed 'orf]

It will also be the case that the removal of the default based on the unlawfulness of the charges may not actually win because the charges haven't been determined to be unlawful as yet.
Glenn

It's not the unlawful side I'm refferring to, it's that the account was in despute, and their Solicitors backed off very quickly.

[peed 'orf]

the bank settled both claims out of court, and after paying out entered the defaults with the CRA's.

I checked my file begining of Feb, no defaults. They paid out on the 1st claim, at the same time (as near as **** it) the defaults went on. I didn't know untill last week when I was turned down for a bank account and got my report. By which time they paid out on the 2nd claim (6th June).

[strangewayofsavin]

This may be of relevance, I will do a bit more research, but with this and the bank code, and the DPA, if all is as is, then I think a large scale complaint is in order




Defamation Act 1996 (c. 31)
1.
Responsibility for publication.
— (1) In defamation proceedings a person has a defence if he shows that—
(a) he was not the author, editor or publisher of the statement complained of,
(b) he took reasonable care in relation to its publication, and
(c) he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement.

[peed 'orf]

Defamation Act 1996 (c. 31)
1.
Responsibility for publication.
— (1) In defamation proceedings a person has a defence if he shows that—
(a) he was not the author, editor or publisher of the statement complained of,
(b) he took reasonable care in relation to its publication, and
(c) he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement.

Oh, err, I've been deframated!!!!!!!!

[strangewayofsavin]

Sorry about the font size, just incase someone was wondering about the author, editor etc. here is the rest of the section from the defamation act 1996


(2) For this purpose “author”, “editor” and “publisher” have the following meanings, which are further explained in subsection
(3)—
“author” means the originator of the statement, but does not include a person who did not intend that his statement be published at all;
“editor” means a person having editorial or equivalent responsibility for the content of the statement or the decision to publish it; and
“publisher” means a commercial publisher, that is, a person whose business is issuing material to the public, or a section of the public, who issues material containing the statement in the course of that business.
(3) A person shall not be considered the author, editor or publisher of a statement if he is only involved—
(a) in printing, producing, distributing or selling printed material containing the statement;
(b) in processing, making copies of, distributing, exhibiting or selling a film or sound recording (as defined in Part I of the M1Copyright, Designs and Patents Act 1988) containing the statement;
(c) in processing, making copies of, distributing or selling any electronic medium in or on which the statement is recorded, or in operating or providing any equipment, system or service by means of which the statement is retrieved, copied, distributed or made available in electronic form;
(d) as the broadcaster of a live programme containing the statement in circumstances in which he has no effective control over the maker of the statement;
(e) as the operator of or provider of access to a communications system by means of which the statement is transmitted, or made available, by a person over whom he has no effective control.
In a case not within paragraphs (a) to (e) the court may have regard to those provisions by way of analogy in deciding whether a person is to be considered the author, editor or publisher of a statement.
(4) Employees or agents of an author, editor or publisher are in the same position as their employer or principal to the extent that they are responsible for the content of the statement or the decision to publish it.
5) In determining for the purposes of this section whether a person took reasonable care, or had reason to believe that what he did caused or contributed to the publication of a defamatory statement, regard shall be had to—
(a) the extent of his responsibility for the content of the statement or the decision to publish it,
(b) the nature or circumstances of the publication, and
(c) the previous conduct or character of the author, editor or publisher.
(6) This section does not apply to any cause of action which arose before the section came into force

[iancognito]

May as well debate this one

I have an e-mail of the ICO saying they will intercede on a disputed default for me, unfortunatley by the time I received it I had beaten Vodafone into submission, so if the information is not accurate they will investigate, therefore the duplicate CCJ with confirmation from the court shouldn't be a problem.

The defaults from after the bank paid out may be a more difficult issue and is why I always advise people not to stop paying their debts while they are claiming charges, if you have been defaulted after claiming charges back and think they have done it to retaliate, they would have to prove that you have defaulted on payments and that they have delayed until the dispute has been settled, in other words the non payment would have had to take place immediately before the claim (otherwise why didn't they default you at the time) or after the dispute was settled (always wise to pay off the balance with the refund).

Always got to be worth a complaint to the FOS if you suspect retalitory action too!!

As far as courts concerned, well I know I keep harping on about it but Dayglo, court, lost, lucky not to have costs awarded against him but I feel that case covered everything that is likely to be covered until something new turns up.