New attack on CRA's to remove defaults.
Untested and with much cap doffing to Finlander, Fodderstomp and other good people of the forum.
Sir.
I state that everything contained within this representation is the solemn truth.
I write to put you on notice that you are continuing to publish defamatory information concerning my person despite this information being in formal dispute.
Not only is this behavior in disobeyance of the technical guidance issued by the Information Commisioners Office, but it is in breach of section 40 of The Administration of Justice Act 1970, The Data Protection Act 1998 and the Office of Fair Trading Guidelines. It has not escaped my notice that it is also libelous and I may seek to pursue you for damages in this respect since your defamatory publication of false fact about me has caused me to suffer financial loss and personal embarrassment.
In he first instance I suggest that you acquaint yourself with a copy of the Information Commisioners Office technical guidelines regarding the placing of defaults. If you do not have a copy there is one available on the website of the Information Commissioners Office, you will find it at the following web address.
Cantposturlssoitsworldwid ewebdotico.gov.uk/upload/documents/library/data_protection/detailed_specialist_guide s/default_tgn_version_v3%20 %20doc.pdf
The false information that you are publishing about myself takes the following form.
Default 1
Default 2 etc.
You freely publish to any customer of yours upon receipt of a fee this information yet have not substantiated its merit in truth. I am aware that your terms and conditions involve your clients signing to the effect that any information passed to yourself is truthful and accurate and that you subject all your data to a rigorous validating procedure upon receipt. The failing here is that the only way you could possibly have of evaluating whether the information has any merit in law is through an agreement signed presumably upon opening the account with yourselves by one specific member of a Company. It is highly unlikely that a Company employing hundreds or thousands of employees who might be in a position to make information available to you is able to ensure that each and every employee is not only fully aware of this obligation but is actively abiding by it. I would therefore be extremely interested to learn what further procedures your Company takes once it accepts the information from a Company to ensure that such information is meritorious in both truth and law?
You understand that under the Data Protection Act 1998 that you must take :- 'reasonable steps' to maintain information on our database that is accurate and up to date. '
The Law implies that you must take more than one step to ensure the information yet if you take the word of the Company signatory to your terms & conditions as absolute proof I can only assume that your validation checks are concerned solely with checking every such factors as spelling, calculations, postcodes and names. There is no other way you could possibly check the merit of the information itself other than through the Company which initially supplies it you.
I am aware that you do not take any steps to verify the legality of the claim entered other than by relying upon the suppliers integrity and offer you the chance hereby to explain what processes you do follow in this matter if I state this incorrectly.
The issue I have mentioned that I have with your Company concerning the above default notices is as follows:
I have made no acknowledgement of the debt(s) claimed and have requested that the Company lodging the information take the necessary action to prove their claims. In the first instance I formally requested that they proved the debt existed and prove that they were entitled to take enforcement action in the matter by virtue of providing me a copy of the original agreement signed and executed and in the prescribed format, and a copy of notice of assignment from the alleged original creditor. This request was made under an Act of Parliament of this Country namely section 79 of the Consumer Credit Act 1974 and was delivered in the manner prescribed. After twelve working days plus two, I failed to receive the literature requested and the account formally entered dispute. I made the Company aware of this and they failed to reply/replied with a request for more time. I duly gave them more time yet to date they have failed to supply the documentation. Without this documentation the debt is unenforceable in Court and all collections activity should be ceased and all data sharing relating to this disputed accountshould be stopped according to OFT guidelines. It is quite apparent that this is not the case since the Company are still continuing to pass data in the matter to yourselves and you are prepared to publish that data at a price to any interested parties.
This is a serious breach of Section 40 of The Administration of Justice Act 1970 which I shall reproduce in part for your convenience.
Section 40 of the act provides that a person commits an offence if, with the object of coercing another person to pay money claimed from the other as a debt due under contract, he or she:
It is also provided that a person may be guilty of an offence under paragraph (1) above if he concerts with others in the taking of such action as is described in that paragraph, notwithstanding that his own course of conduct does not by itself amount to harassment.
- harasses the other with demands for payment which by their frequency, or the manner or occasion of their making, or any accompanying threat or publicity are calculated to subject him or his family or household to alarm, distress or humiliation;
The placing of an unmerited default against the name of a person is an action clearly taken with the intention of “coercing another person to pay money claimed from the other as a debt due under contract”, I’m sure you will quote that you stand on the moral ground here and these default notices are published solely for the Public good but there is not a debt collection
Section 40(1) of the Administration of Justice Act 1970 states
harasses the other with demands for payment which by their frequency, or the manner or occasion of their making, or any accompanying threat or publicity are calculated to subject him or his family or household to alarm, distress or humiliation;
It is the use of the phrase or any accompanying threat or publicity are calculated to subject him or his family or household to alarm, distress or humiliation; that I see redress available to myself in this matter.
You would be foolish indeed to claim that you do not publish this information since this is the primary business of your Company. That this information is calculated to cause me, my family and household distress or humiliation by virtue of being refused credit or having to take credit at much more punitive rates of interest is beyond doubt in fact you freely advertise to prospective clients that these two options will be easier for them to judge if they sign up to your services.
The Act then clearly proceeds to state: It is also provided that a person may be guilty of an offence under paragraph (1) above if he concerts with others in the taking of such action as is described in that paragraph, notwithstanding that his own course of conduct does not by itself amount to harassment.
That you and the Debt Collection Agency(ies) in question are in concert in this matter is indisputable
I therefore state that you are in clear breach of Section 40 (1) of The Administration of Justice Act 1970 and this unlawful action is causing me to suffer damage and incur higher costs in respect of my daily personal (and business) finances, the withdrawal and/or refusal of facilities which would otherwise be available to me. And I request that you stop this unlawful behavior forthwith!
Not only are you in breach of the Administration of Justice Act 1970 but I find you in flagrant breach of the Data Protection Act 1998 and such breach is causing me damages.
We need to be clear here as there is scope for you to try to assert the stock industry rights as law in your defence, I am familiar with these assumed rights and will not entertain them since they are exactly that “assumed rights” which have no grounding in law whatsoever. I am concerned with the legalities of the situation as you yourself should be if I choose proceed into litigation against yourselves so I suggest that you do not waste my time by trying to convince me that you have a right to process this information for any of the following reasons:
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.
My dispute centres on the fact that this “contract” does not exist I have given the Company ample time to prove this contract exists and they have summarily failed.
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.
My dispute centres on the fact that this “contract” does not exist I have given the Company ample time to prove this contract exists and they have summarily failed.You also make the sweeping assumption that if the account existed the debt exists! This claim purports to supercede and make a mockery of much legislation in this matter especially The Consumer Credit Act 1974, Your obligations under The Data Protection Act 1998, the very guidance issued by the Information Commissioners Office which I have referenced above and the OFT guidelines in the matter.Where does this leave you in such cases where the Debt Collection Agency issues notices to the wrong person as happens not infrequently? The account may have existed certainly but not to their knowledge or benefit.
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.
My dispute centres on the fact that this “contract” does not exist I have given the Company ample time to prove this contract exists and they have summarily failed.
If I may refer you now to the guidance provided by the Information Commissioners Office in the matter as referenced above and in particular the following paragraphs:
Paragraph 39~ Accuracy of 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
It would appear that the Information Commissioners Office expects the DCA to be able to produce evidence to justify these default notices. By virtue of them failing under a lawfully binding request under Section 69 of The Consumer Credit Act 1974 they have already legally admitted that they do not hold such evidence.
I’m sure you are also familiar with the recent legislation on Unfair Trading which came in to force on 26th May of this year and ensures that the duties of the lender to supply information are duly passed on to the Debt Collection Agency so there is no scope for defence by blaming a third party for failing to supply them with the evidence.
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.
By virtue of this letter I legally make you aware of this challenge against the inaccurate information you are publishing about me referenced above. I understand that you now have 28 days in which to substantiate the information you lodge against myself. I shall contact you in this matter not earlier than the 28th day from the date which the Royal Mail supply me with as the date this letter entered your possession.
If I am dissatisfied in any way with your action I shall proceed as follows.
I shall make representation to the Information Commissioners Office that you are in grave breach of their guidelines and grave breach of The Data Protection Act 1998.
The Information Commissioners Office are very clear what action should be taken where disputes are unresolved, the information is again enclosed in the guidance referenced at the top of this letter.
For your convenience I shall spell out the procedure to you.
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
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 before.
- 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.
I shall also make representation in the matter to the OFT in the format of:
Representation that you are in flagrant breach of OFT guidelines.
Representation that you are in flagrant breach of The Data Protection Act 1998
Representation that you are in flagrant breach of The Administration of Justice Act 1970
I may also take the following action at this stage if I find your stance unacceptable.
I shall also serve you notice to cease and desist publishing libelous and damaging false information about myself or face action for Libel through the county court
I shall lay charges before the Clerk at my local Court that you are in breach of the Administration of Justice Act 1970
If you read the guidance I have supplied you with you will see that your only defence in this matter is to prove that the information you publish about me is true. The guidance clearly states that now I have made you legally aware that the above mentioned account(s) is/are in formal dispute that they will be expecting you to provide evidence that the default is valid. It is no longer for me to prove that it is invalid.
The only evidence acceptable to the Court will be a true copy of the signed executed agreement under the CCA1974 in the prescribed format together with a full copy of the terms and conditions applicable at the time of execution and a copy of notice of transfer proving that the agency are legally entitled to pursue the matter. These are the very least I shall myself be requesting from you in a Section 18 CPR request before any Court date it is imperative that you get them from the debt collection agency at the earliest and certainly within the allotted 28 day period the Information Commissioners Office expect you to complete your investigation within. Failure to produce any one of these items will likely cost you the case.
I offer you a simple choice here.
At the opening of this letter I stated that everything I state herein is true.
Your most likely defence is to state that everything your clients tell you is true because one member of that company at some time in the past signed an agreement with yourselves.
I offer you the choice of believing me and withdrawing the damaging information until such time as the company who lodged it can prove it in a manner you feel will defend the name of your company in the event of litigation.
Or:
Continue to publish, you will then have 28 days to prove (and make no mistake here by virtue of me herin making you aware the burden of proof is now upon yourselves)that the information you publish is true.
Failure to prove in a manner acceptable to the Courts will result in litigation, likely prosecution under the AJA1970 and an unwinnable case raised against you for libel.
****For Equifax letters only****
I also serve you notice that I have complained to the Advertising Standards Authority in a matter of false advertising.
This is in respect of the following product and claims contained within your advertising for this product.
Risk Navigator.
Positive Insight* Data
Delinquent Insight* Data
Default Insight* Data
I take exception to the following advertising slogan.
*Insight is Equifax’s database of Consumer Credit Agreements.
This implies that your database is an accurate and authorative representation of Consumer Credit Agreements and is being sold and advertised on these grounds.
I have complained on the grounds that it is not accurate.
I have made representation that it is instead your own particular interpretation of a database of CCA’s and that being unchecked by yourselves and influenced by the input of 3rd parties who all have a vested interest in coercing further parties through the use of this very database it should be marked to this effect.
I have suggested the ASA enforce you to put this disclaimer each time you advertise the word Insight in relation to your database.
“Warning this database of Consumer Credit Agreements is subject to inaccuracy caused by the failure of the database holder to ensure records within it are legally valid or accurate”.
I can see no argument with that, can you?
Yours.
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