Experian Outrageous!!!

[hme.4x4]

I wrote by email, to Experian the following letter regarding defaults on my credit files;


NOTICE TO DESIST FROM PROCESSING OR DISCLOSING PERSONAL DATA DATA SUBJECT NOTICE - Credit report ref XXXXX
Regarding the defaults held on my file as follows;
xxxxxx
xxxxxx
xxxxxx
xxxxxx
I have sent a request to each of these creditors for a copy of my Consumer Credit Agreement (Consumer Credit act 1974) All of these creditors are now in default and have been so for more than a month.

I have received no agreements as requested and these accounts are now subject to a serious dispute. Further to this dispute I can confirm to you that I have at no time received a Notice of Default as required by the conditions of the Consumer Credit Act 1974, for any of these accounts, and as there are no enforceable agreements available for the accounts I am contesting that your continued processing of my data is an unwarranted act.
It is not necessary for me to document all of the sections of the Data Protection Act as I am certain you are well versed with it. Suffice to say, I am a well educated professional and very familiar with the terms of this Act. And, following careful scrutiny of the relevant legislation, including the Consumer Credit act (As Amended) and the various Financial Service Acts it is clear that there is absolutely no legislation that allows a lender or supplier to collate process, or distribute any information unless there is express permission from the data subject.
In fact as I am sure you are aware, Section 10 of the Data Protection Act awards the real authority, regarding the privacy of data, to the data subject, not the Data Controller.
The act is very clear as to the rights of the data subject in respect of withdrawing permission to continue data processing and disclosure. The purpose of this email is to inform you that;

there are no agreements in force with the above mentioned creditors, and to continue to hold my data in your files, you must hold in your files and provide me with, true copies of these agreements. If there is no agreement then there can be no default.

There has been no Notice of Default from any of the above creditors, and the default and continued maintenance of these defaults, is unlawful without a Default Notice being issued to the debtor prior to the Default being registered.

You may not collate, process store or communicate my data without my express permission.
I do not ever recall providing such permission and indeed, if I did ever do so, it was not with the intention of allowing it to be processed in perpetuity. And, in fact, had I done so it would only be in force during the term of the agreement, which I have already stated is not available.

There is no agreement, nor any permission from the data subject.

I must therefore insist, that from this day onwards Experian must; Cease the storing, processing and communicating of my data in relation to these accounts which are in serious dispute.
Remove all such data for these disputed accounts from all automated process systems as per the provisions of Part 2 Section 12 (1) of the Data Protection Act. Cease to disclose any data to any third party and remove all data pertaining to your records, in relation to these disputed accounts, to the extent that no data entry in relation to any of these accounts will exist on my credit files.
I contend that continued processing, storing and communicating of this said data by Experian, will be considered to be unlawful, and without my permission as the data subject a defamatory act and action for libel will be forthcoming.
Any failure on your part to adhere to this instruction will be automatically interpreted as your non compliance with legal procedure. In which case, you will be expected to comply unconditionally with this notice or I will, without any doubt, refer the matter to the courts where I shall apply for court fees and legal costs against Experian.

I also reserve the right to seek redress for damages as per the remit of the data Protection Act.

I trust that I have made my postion clear and that Experian will make a serious effort to understand, and comply with these legal obligations and effect the changes which are required.
I expect written confirmation from you acknowledging the contents of this letter within 5 working days. If not you will be furnished with a Letter Before Action regarding this defamation and libelous action on your part. Yours sincerely et etc.

Within 2 hours I received the following response;

I understand you require written proof of the agreements you hold with the companies recording defaults on your report.

If a company cannot provide you with any actual evidence of your initial consent or the agreement, this does not necessarily mean that they have to remove the data from your credit report. Oh really?

For example, if a company can demonstrate that an account was being paid on time for a number of months/years prior to falling into arrears, this is often seen as evidence that the individual concerned must have consented to the terms and conditions of a contract. Even when there is no agreement??

A company will only open an account if the applicant agrees to their terms and conditions so, unless the account was opened fraudulently, the account holder must have agreed to the standard terms and conditions for that type of account. So pluck an agreement out of the air, any agreement will do.

Therefore, as long as the company terms and conditions specify that they reserve the right to pass account information to a credit reference agency, a period of meeting contractual obligations, or simply opening the account, will often be deemed as evidence of consent to those terms and conditions. So a company can open an account with no agreement and they will have all the evidence they require to threaten the victim forever?

I am unable to arbitrate in a dispute between you and a company regarding whether they have complied with a specific piece of legislation. I would recommend that you either approach the company directly or lodge a formal complaint with a recognised regulatory body should you wish to take this matter further. I have, and they haven't replied to that letter either.

We do not amend or delete information on a credit report when it is alleged that a company has not complied with a request for information to which the individual believes they are entitled We cannot act unilaterally to remove data from your report. Once in receipt of a reply from the companies concerned I will notify you of the outcome and of any changes made to the information that we hold about you. So having no permission from the 'data subject' is irrelevant, the companies (who have no agreements) have absolute authority over this data subject? methinks they are in do lally land.

The Data Protection Act 1998 stipulates that we have an obligation to ensure that we take 'reasonable steps' to maintain information on our database that is accurate and up to date. 'Reasonable steps' would include copies of agreements and written permission from the data subject wouldn't it?

All of our clients sign up to strict terms and conditions within their contract that require them to make sure that all the data they submit is accurate prior to providing it to us. Our regulator, the Information Commissioner, considers that this is having taken 'reasonable steps'. Can anyone tell me what these 'reasonable steps' are??

We also have over 200 generic checks in place to check the overall consistency of the data that we receive and a specialist department dedicated to running these necessary checks prior to loading the data to our records. This is because it is not possible for us to individually check each item of the data. This would involve going back to the company and asking them to check information that, as far as we are concerned, they have already confirmed to be accurate by sending that data to us. So the
generic checks are not done because 'it is not possible to individually check each item of data' An admission surely that no checks are done and this confirms the data cannot be guaranteed accurate.

If any specific issues are brought to our attention we will also query the accuracy of the specific entry being disputed with the company concerned and add a Notice of Dispute alongside the information being queried. If you can tell me exactly why the defaulted accounts on your credit are inaccurate, I will be happy to comply with our legal obligations and contact the companies to verify the accuracy of the data they are providing. Hmmm, thought I had already told them there were no agreements, no default notices and no permission from me!

You may also wish to access the link below which outlines the Information Commissioner's viewpoint with regards the retention of default information and also those accounts that have been paid on time. Within this article it is clarified that we do not require your consent to continue processing account information about you for 6 years from the date that an account either becomes settled or defaulted

http://www.ico.gov.uk/upload/documents/library/data_protection/practical_application/credit_%20agreements%20-%20data_%20sharing.pdf

Yours sincerely

Mrs Catherine M Procter
Consumer Service Officer

I have to say, I am normally a mild mannered lady.....but today I am spitting mad, this has just made me even more determined to remove these defaults.
Any further thoughts from anyone please?
I'm going to fight this to the death.

[lickthewallfatboy]

there has to be a way to bring these tubes to boot.....

I have a sneaky feeling that someone somewhere is going to dig up something to beat them over the head with once and for all.....

[hme.4x4]

I really hope so and sometime soon!

Why is it they seem to have this arrogant belief that they are above the Law in this country?
Could it be that they have just got away with it for so long without being challenged?.
For heavens sake, we have to get some pressure applied... I am thinking of writing to my MP to start. Maybe we should all do that!

[hme.4x4]

Is there anyone who can please advise me what my next action should be?

[Toulose LeDebt]

This is what I would send her but hang fire and see if somebody more experienced I'm a newbie here.

Dear Mrs Procter.

I thank you for your most recent reply in the matter but am surprised that you still persist in denying my request. You have kindly sent me a hyperlink to technical guidance in the matter in the form of a PDF document hosted on the website of the Information Commisioners Office. Since you are so obviously aware of this facility I am bemused as to why you did not send me this much more relevant link from exactly the same source: The website of the Information Commisioners Office.
worldwidewebdotico.gov.uk/upload/documents/library/data_protection/detailed_specialist_guide s/default_tgn_version_v3%20 %20doc.pdf
If I may draw your attention to the following paragraphs of this technical guidance notice I’m sure you will have to agree with me that this if far more relevant than the vague piece of guidance to which you directed me since this guidance is the correct one to refer to when dealing with the filing of defaults with Credit Reference Agencies and is able to provide much more insight and guidance into the matter in hand
Paragraphs 42,43,44 and 45 of this guidance specifically relate to unresolved disputes and again since you clearly acknowledge in your last communication that I have made you aware that I believe I have valid claim to an unresolved dispute in this matter I express surprise that you not only failed to take my claims seriously but actively chose to defend your stance in the manner by stating your interpretation of the situation as fact. You also chose to present to me in your defence that since all your customers sign an agreement to provide accuracy, minimal duty to confirm this data is conferred upon yourselves.
This is simply not the case in law as I shall illustrate herein.
In your last email you stated the following:
If a company cannot provide you with any actual evidence of your initial consent or the agreement, this does not necessarily mean that they have to remove the data from your credit report.
Although such failure to provide this evidence in itself does not necessarily mean you are forced to remove the data, such failure is a contributory factor to any judgement made in the matter under paragraph 44 of the above guidance and is likely the single most damaging factor to be taken into account.
It is likely that in the absence of any supporting evidence to the contrary the Information Commissioners Office would find in my favour forthwith.

For example, if a company can demonstrate that an account was being paid on time for a number of months/years prior to falling into arrears, this is often seen as evidence that the individual concerned must have consented to the terms and conditions of a contract.
I see no reference to this “fact” in the guidance.
I do however notice that you have used the phrase “this is often seen as evidence”.
And state that strangely you use the word “often” when surely if you were acting lawfully the correct word would be “always”? I’m sorry Mrs Procter but this sounds tenuous to me expecially since the Information Commissioners Office seem unaware of this “legislation”.
Obviously the lender would have to prove that these payments existed to assert this right. Have you established beyond doubt that this is in fact the case? I suspect not.


A company will only open an account if the applicant agrees to their terms and conditions so, unless the account was opened fraudulently, the account holder must have agreed to the standard terms and conditions for that type of account.
Firstly terms and conditions are changed regularly and secondly are you now trying to tell me that extensive legislation in these matters such as the Consumer Credit Act 1974 are unnecessary.? If your argument here is true then why have the Information Commissioners Office bothered writing the guidance notes we are referring to here? Paragraphs 42, 43, 44 and 45 are unnecessary , section 79 of the Consumer Credit Act 1974 is unnecessary since you tell me that the existence of an account is sufficient proof that an alleged debt exists? Preposterous! And contrary to not only several laws of this land but OFT guidelines and guidelines set out by the Information Commissioners Office.

Therefore, as long as the company terms and conditions specify that they reserve the right to pass account information to a credit reference agency, a period of meeting contractual obligations, or simply opening the account, will often be deemed as evidence of consent to those terms and conditions.
These rights are assumed as industry practice and have no basis in contract law. Where a contract exists between the two parties, such contract is entered into in the assumption that any information shared is accurate. When inaccurate information is shared it is the sharer who enters breach and any contract or rights conferred under this contract are void. These rights are not given in perpetuity and are never given in such manner as to allow the data processor to legally publish false information.





I am unable to arbitrate in a dispute between you and a company regarding whether they have complied with a specific piece of legislation. I would recommend that you either approach the company directly or lodge a formal complaint with a recognised regulatory body should you wish to take this matter further.
This is not a question of arbitration, I will happily deal with that myself. I simply require you to stop processing false information whilst the dispute is unresolved. As matters stand you are far from the middle ground you claim as you are patently siding with one party in this matter. Would you side with me if I offered to sign a statement stating everything I tell you is true or are you simply taking their side for the fee?
I have taken this matter up with the appropriate regulatory bodies and have also made representation about the role of your Company in this matter.

We do not amend or delete information on a credit report when it is alleged that a company has not complied with a request for information to which the individual believes they are entitled We cannot act unilaterally to remove data from your report. Once in receipt of a reply from the companies concerned I will notify you of the outcome and of any changes made to the information that we hold about you.
I recommend you read the guidance which I have supplied you with in the above hyperlink.
and take the time to acquaint yourself with paragraphs 39 and 41.

Accuracy of a lender’s default records
39 Records
Any default record should be accurate. We normally expect a lender to keep records that are necessary to show an agreement exists and to support filing a default. We would also expect a lender to be able to produce evidence to justify a default record they had placed on a credit reference file. Not having any supporting records may indicate a breach of the data protection principle requiring personal data to be adequate, relevant and not excessive for the purpose for which it is processed. A record that a notice of an intention to file a default was sent, if not a copy of the notice itself, will help lenders to comply with this requirement.

Presumably when contacting the Company you have asked them for confirmation that an agreement exists? I did and they ignored me because they do not have one. Neither have they provided any evidence to justify placing the default notice on my file. I think it is very important that you ascertain beyond doubt the existence of this evidence since:


Under paragraph 41.
Credit reference agencies potentially have a defence against action through the courts by individuals who successfully challenge the accuracy of data received from a lender. However, this defence is only available if the agency takes reasonable steps to make sure the data is accurate and, as soon as they become aware of the challenge, takes steps to mark the file accordingly. Records where the accuracy is challenged can be marked as ‘under query’. This marker alone is unlikely to be sufficient to provide protection against claims, including those for compensation. Agencies should therefore ask the lender to substantiate the disputed information within a reasonable time frame, for example, 28 days, and, if the lender is unable to substantiate the disputed information in that time, should suppress the information from the file.
You are aware that I dispute the claim yet still choose to publish the inaccurate data. This paragraph clearly states that you have a defence only if you can prove that you took reasonable steps to ensure the data was accurate. You are aware that in the event of litigation since I dispute the existence of such, the Court will require a signed executed Credit agreement and a legally binding copy of the notice to default as absolute proof that the default existed and that therefore the information was published lawfully? Such evidence will become subject of a Section 18 claim under CPR lodged by myself against your Company, not the DCA but your Company and failure to supply these two very important pieces of evidence will ensure that you will have lost the case before we even enter Court.
So I suggest that as you are obviously unprepared to help me in this matter at this stage that you look after the interests of your own Company and request from the Company that lodged this default against me a copy of each of the pieces of evidence you will be required to produce in Court. Don’t forget that the Information Commissioners Office expects you to conclude your investigation and conclude your inquiry into the matter within a period of 28 days and that the clock has been ticking for some time now.
I will contact you in this matter specifically on the 28th day from that which I first made you aware of my concerns. If I am still dissatisfied with your stance I see no option but to instigate litigation against yourselves under the guidance offered me by the Information Commissioners Office.
Of course if you do manage to avail yourself of copies of both a credit agreement and the notice to default I shall have to accept that you are acting lawfully in this matter, obviously in the circumstances I would require proof.









Now I would like to refer specifically to Paragraphs 42, 43 and 44 of the above technical guidance in the matter from the Information Commissioners Office.

Unresolved disputes

42 Lenders are faced with difficult decisions when considering recording defaults which are disputed by the customer. It is not our role to arbitrate in disputes between borrowers and lenders. However, when we consider complaints, we will conclude, where there is clear and sufficient evidence that a default has not occurred, that it is likely that the lender has not complied with the data protection principle which requires that personal data are accurate.
43 If we conclude that there is a genuine, reasonable and unresolved dispute between the borrower and lender, then we are likely to find that personal data have been processed unfairly if a default has been filed. Defaults filed in these circumstances may also be inadequate for the purpose of credit referencing in that they do not provide meaningful information about the creditworthiness of the customer.
44 These are difficult judgements to make. Although none of the following will necessarily be conclusive, we will take into account these factors.
(I paraphrase here for the sake of brevity but shall respond to each question in turn).
- Is the customer able to produce evidence that they disputed that a default occurred?
Yes. I have several copies and originals of communications between myself and the Company in the matter and I have Post Office receipts to prove that my request for a CCA was made, the statutory fee was processed and can prove that the Company are now out of time in this matter therefore the account is in formal dispute.
- Did the customer dispute the default before the lender announced their intention to file a default or after?
Since I did not receive a notice to default it would have been impossible for me to dispute the default
- What is the nature of the dispute? For instance, does the customer allege that the agreement has been breached, for example, because the goods supplied were faulty, or does the customer simply dispute the amount of the default? ****** Fill this in yourself*******
- What evidence has the customer produced to support their side of the dispute?
*******Fill this in longer list the better for you
- Has the lender simply ignored this evidence or have they produced evidence to support their version of events?
They have ignored this evidence and failed to supply any evidence to support their version of events despite a request being made by myself specifically to this end under sec. 79 of the Consumer Credit Act 1974
If we conclude that there is a genuine, reasonable and unresolved dispute between the borrower and lender, then we are likely to find that personal data have been processed unfairly if a default has been filed.’
In light of the factors taken into consideration, there is no doubt in my mind that the case would be found in my favour.

And finally from your last email I reproduce the following.

The Data Protection Act 1998 stipulates that we have an obligation to ensure that we take 'reasonable steps' to maintain information on our database that is accurate and up to date. '

So you are at least aware of your duties under this Act then? I suggest you re-read this sentence.

The Data Protection Act 1998 stipulates that we have an obligation to ensure that we take 'reasonable steps' to maintain information on our database that is accurate and up to date. '

I see that the word steps is plural yet you freely admit that if a customer states that the information is correct then you will take that statement at face value. I can think of no other check you could possibly make once that information is in your domain which would validate the integrity of the information. The spelling maybe or checking the postcodes and house numbers or amounts claimed but by admitting that you take the word of your Customers as proof also admit that there is no exercise of duty from yourselves to ensure that the information has any merit in Law in fact by my own experience I find you particularly resilient to taking this type of action.
Unfortunately if we reach litigation I fear that the Judge will interpret this obligation to take reasonable steps to maintain information on your database that is accurate and up to date as meriting more than just a precursory declaration of truth with no further check other than an unsubstantiated confirmation from a third party even in cases which involve serious formal dispute. I suspect that he will request documentary evidence to back up your action and that failure to produce this evidence will ultimately cost you the case.
By virtue of me having put the account into dispute and being in possession of much evidence to this effect it will now be for you to prove that the default is valid and in the absence of the credit agreement and notice to default that is going to be very difficult for you.
But then your Customers all sign up to your Companys terms and conditions under which they agree that all information supplied to you is to be accurate so unless they have signed up fraudulently the good name of your Company will have nothing to fear from litigation, will have no payment to make in respect of compensation or will have no fear of an investigation from either the Information Commissioners Office or the OFT will it?
I’m sure you told me earlier that this was how the law worked.

Obviously no agreement between yourselves and your customers that information supplied is to be accurate is a defence in law were I to prove that this default is unlawful, and sue you for libel for publishing false information about me.

[Sol]

Subscribing

[hme.4x4]

TouloseLeDebt,

absolutely fantastic letter, thank you! It was just what I was looking for. This could not have been a more helpful reply. I have sent it off so will keep you posted as to their reply!

[Dipply75]

OMG HME, this is exactly the response I have been hoping they would send someone. They implied this to me, but this is clearly put - as soon as a company becomes a client (pays us a fee), they sign an agreement saying everything they submit will be accurate - we then agree to trust everything they say (for a fee). That is their 'reasonable steps'. You promise to be truthful and if you pay us money we will believe you. Priceless.

I will also be asking them, if they cannot just 'unilaterally' remove data, why can they, by the same token unilaterally allow data. Is the only reason that their client paid a fee?

That shows a clear bias and conflict of interest - this is also not verifying the accuracy of anything, that is relying on a pre-agreed contract of trust, which is being abused, they know it, and are allowing it. (because they pay a fee lol). Do they think that agreeing to trust someones word for money is compliance under the Data Protection Act?

I also see they are starting to argue the implication of agreements, running of accounts etc. This is nothing to do with them. Unless there is a legal agreement with your consent to process your data, the alleged day to day running of an account is irrelevant. Have they even seen proof of this account? I don't think so! again, their clients word about the balances, payments, dates etc.

As in my case - the account didn't exist but, client said it did so thats tough on me?

Got them

Sorry for the rant, but they have given you so much ammo lol. If they think that demonstrating an account ran at some point is sufficient, then are they saying they CCA act and all the protection it provides is irrelevant?

pmsl

[foolishgirl]

You may be a newbie Toulouse but your draft letter is worth a dozen posts.

Excellent!!

[hme.4x4]

Couldn't agree more Foolish Girl, I was stunned to get this because it had all the elements I needed for my reply to them.
I think it is priceless and should be stickied!
Dipply, I felt the same way when I got this, exactly as you say. Pay us a fee and we will believe every word you say and record it for 6 years! Even when we are breaching the Data Protection Act.
I thought when I got it that there was a lot here to work with, but I just didn't know how to approach it when Toulose sent this gem.
I have sent them this letter and will post any replies!

[sillygirl1]

Love your letter, I am going to pinch most of it when I know Experian WONT remove false data planted by a utilities company (two years worth of billing me for a property I did not own nor rent....) let alone the credit card company who are continually writing to my OLD address, even though they know I live here and have done for the last 18 months.

Experian's days are definately numbered now that people realise they DO have rights and can exercise them. I think everyone on CAG should send a letter asking for removal of data and then send the above letter when they refuse.

Experian are NOT above the law, they are not even part of the law, they just like to kid everyone else they are..... Games up chaps (and chapesses). The ball is back in our court now and you are going to be served so many aces you are going to suffocate.

[foolishgirl]

YES!! Like the attitude sillygirl!!

Any more letters like that TLD? You should join forces with Finlander, he has great rallying cries too.

[Coasters]

subbing.

Excellent thead!