Afternoon all,

I'll get straight to the point... one of the payday 'giants' has been unfairly processing my data for the last 3 years now and are unwilling to change their position. Hence, I am considering taking them to court.

Here's what happened:

- Payday loan taken out in 2013

- Couldn't afford it (like most), half of the sum due was taken out of my bank account, leaving the other half due

- Been down the irresponsible lending and unaffordable complaint routes, both failed with FOS

- The lender has never bothered to default the account, it is still in limbo today

- Having checked my credit file, the lender has reported the account 'late payment' for the last 3 years

I have contacted the ICO for some clarification regarding credit reporting, and I was advised that the 'late payment' marker should only be used for a maximum of 6 months, after which time the lender should either default or discharge the account. Keeping the account open in this current status is unfairly prolonging the length of time the entry will stay on file.

With such accounts, unless defaulted accordingly, they could stay on file indefinitely, much like a credit card or current account. This is clearly a breach of ICO guidelines and the DPA. The lender has claimed their current reporting is an accurate representation of the status of the account and that they are "not required to provide a notice of default for this type of product". I'm not sure why they have said this either.

As it stands, instead of this 28 day loan being removed after 6 years, it could stay on there for 9, 12, 15 years possibly.. you get my drift!

I'm reluctant to escalate this to the FOS or ICO as from a lot of personal experience, they are extremely inconsistent and unreliable. Therefore, I'd like to go straight to litigation.

The thing I'd like advice on, is which legislation(s) to use, i.e. just the DPA or include the CCA and ICO/FCA regulations. Also, as the lender is way past the legal timeframe in which they can default the account, and I'm sure they can't default it retrospectively, is it fair for me to request the account be removed in its entirety? I've seen others also request damages upto £1000, but I'm not sure how they have reached this sum or proved the sum justifies the damage caused.

Any advice about the best way to go about this would be great!

Thanks

Hello and welcome to CAG.

I expect the legal guys will be along later, please bear with us until they're able to get here.

My best, HB

I must add, I made a 'without prejudice' F&F settlement offer a few months back which they rejected.

They came back with a much higher counter-offer stating that should I accept,

the account will then be reported as 'partially settled' for a further 6 years.

I quickly rejected this adding that such reporting will result in the account being reported for a minimum of 9 years which is not just unfair, but also illegal.

They didn't respond to this, which resulted in my latest formal complaint.

I quickly rejected this adding that such reporting will result in the account being reported for a minimum of 9 years which is not just unfair, but also illegal.

who says its illegal?

your issue is they have not defaulted you

but theres no legal requirement to do that either.

so...cant see anything you can 'complain' about.

let alone take them to court for..

I quickly rejected this adding that such reporting will result in the account being reported for a minimum of 9 years which is not just unfair, but also illegal.

 

who says its illegal?

 

your issue is they have not defaulted you

but theres no legal requirement to do that either.

 

so...cant see anything you can 'complain' about.

let alone take them to court for..

Because short-term loans can only be reported for up to 6 years. The ICO states that between 3-6 months after one or more missed payments the lender is normally required to default the account.

You say I have nothing to complaint about which is very odd. These types of accounts cannot be kept open indefinitely. The lender has a duty to report the account fairly and not abuse the reporting guidelines.

The fact of the matter remains that a 'late payment' marker cannot be used for more than 6 months on short-term accounts, let alone over 3 years. This is direct breach of the both DPA & ICO/FCA rules.

Because short-term loans can only be reported for up to 6 years.

 

 

The ICO states that between 3-6 months after one or more missed payments the lender is normally required to default the account.

 

You say I have nothing to complaint about which is very odd.

 

 

These types of accounts cannot be kept open indefinitely.

 

 

The lender has a duty to report the account fairly and not abuse the reporting guidelines.

 

The fact of the matter remains that a 'late payment' marker cannot be used for more than 6 months on short-term accounts, let alone over 3 years.

 

 

This is direct breach of the both DPA & ICO/FCA rules.

is it?

suggest you go read whatever 'rules' you have found properly

they are 'guidelines' not rules.

none of them say MUST as above red bit I've highlighted

becareful

The ICO have regulating 'guidelines', the FCA have both 'rules' and 'guidelines', the DPA is legalisation that cannot be breached.

Guidelines, rules and legislation are not there for fun, they are there to be complied with.

There is enough ammo for a claim imo. Would you be happy for a redundant account to sit on your credit file forever?

(from Experian)

The Data Protection Act

Under the Data Protection Act (1998), an individual has several rights in relation to their personal data. The act aims to balance these rights against the legitimate needs of an organisation to process personal data. It is underpinned by eight ‘common sense’ principles.

Personal data must:

• Be fairly and lawfully processed

• Be processed for limited purposes

• Be adequate, relevant and not excessive

• Be accurate and up to date

• Not be kept for longer than is necessary

• Be processed in line with the data subject’s rights

When a loan for a duration for 28 days is not repaid in full on the due date, it would be fair to assume that after 3 months the 'relationship between creditor and debtor has broken down". It would not be fair to assume that after 3 years, there is still a relationship that warrants the account to remain open.

This payday lender is directly abusing their right of credit reporting as they are very well aware that by keeping the account open, it will keep being reported indefinitely. Given the current status, even when the account becomes statute barred, it will still be reported as an open account on my credit file. This breaches every rule, regulation, and legislation relating to the matter.

This is one of the reasons I am trying to get this sorted, but also to get rid of the last payday entry on my credit file.

I am struggling to understand how you feel I have no cause for complaint, let alone a legal claim.

waste of time

you'll lose in court and badly

there are not rules guideline, theories or anything

that any longer say a creditor 'must' default you.

you could try the ICO

but that's been tried before

and they simply pointed to the new guidelines.

:deadhorse::deadhorse:

waste of time

you'll lose in court and badly

 

there are not rules guideline, theories or anything

that any longer say a creditor 'must' default you.

 

you could try the ICO

but that's been tried before

and they simply pointed to the new guidelines.

 

 

:deadhorse::deadhorse:

Well thank you for that valuable input

But you're incorrect in your statements re rules regarding defaulting.

Section 11 ICO:

11 Time framework

Although there will be some flexibility in the definition of a breakdown, we

believe there should be general rules for the minimum period of arrears

which should exist before a default can be filed. Equally there should be

a maximum period after which, if anything is to be recorded with a credit

reference agency, a default must be filed

[Generally by the time the account is 3 months in arrears, the lender may be taking further

action such as reporting the account as defaulted (see Principle 4 below). Missed payments

may continue to rise and be reported up to a maximum of 6 months.]

• Accounts should normally be filed as being in default where those

payments due have not been received for 6 months.

**the exceptions only being long-term loans and current accounts

Thanks again though for your helpful comments including "waste of time" and "you'll lose in court badly".

I'll use another forum next time, Not legal seagulls as CAG auto changes to)

ico issue guidelines not rules.

and they don't say that anywhere now

that's very old

please don't get caught out by reading old documents

Also be mindful that should you take action, they could countersue for the outstanding amount. Then you will have a ccj on your file for 6 years.

Also be mindful that should you take action, they could countersue for the outstanding amount. Then you will have a ccj on your file for 6 years.

That shouldn't be a problem either. I have numerous avenues of defence against these sharks and personal case study examples from the FOS to back them up. They'd also be unable to make a counter claim as the account isn't in default, therefore they would have to serve a default notice under the CCA and explain why it's taken them over 3 years to do so on a 28 day loan.

Even if all that fails (which I very much doubt it would), there won't be a CCJ if I pay the remaining balance within 30 days of any court order. I know it'll never get that far though. These payday companies have had enough bad press and I can almost guarantee they would settle the matter on receipt of a court claim form.

Hmm, sounds more like you are on an avoid paying back mission more than anything else.

ico issue guidelines not rules.

and they don't say that anywhere now

that's very old

 

please don't get caught out by reading old documents

Note, even on the document you have uploaded it clearly states what I have already highlighted from the guidelines - "Missed payments

may continue to rise and be reported up to a maximum of 6 [months]"

I'm arguing that they cannot continue to report the account as 'late payment' for as long as they wish. This status code should only be used for up to 6 months. Therefore, they'll have to explain why they believe this is fair and in-line with the DPA and ICO guidelines.

The ICO and credit reference agencies have already told me that this would come under 'unfair and unnecessary data processing', but it's up to the creditor to change the entry.

Hmm, sounds more like you are on an avoid paying back mission more than anything else.

No, my 'mission' is to get rid of this unfair entry on my credit file that, as it stands, will never disappear.

As I say, I have many legitimate reasons for not repaying the outstanding balance.

One main reason is that before the due date, I contacted them and explained I was too short on funds and couldn't meet the repayment on time. They agreed to extend the agreement by 30 days. Low and behold, on the original due date I get a text from my bank saying I am over £300 over my overdraft balance. This lender made 8 attempts to raid my bank account for varying amounts, until on the 6th attempt for some reason the bank allowed it despite not having the funds to cover it. They continued trying to take money another 2 times.

This ultimately lead to bank charges of £15 a day plus interest for a month. The spiral effect was enormous and basically plunged me into both bank debts and payday debts I could no longer manage. It wasn't until almost a year later that I began the fight back. But the affect these sharks had on my well being at the time cannot be compensated for.

Anyway, that is just one line of defence I have against them, amongst many, many others.

it puzzles me why the fos didn't side with you

either on the IR front or on the 'correct' reporting aspects

it puzzles me why the fos didn't side with you

either on the IR front or on the 'correct' reporting aspects

I haven't used the FOS for the credit file issue, only for the IR issue. It puzzles me too, but as I have already mentioned, the FOS are extremely inconsistent. In 2013, I had about 20 payday loans, and of the ones I took to the FOS for IR, about half were upheld and half not. All of my complaints were identically worded, the only thing that differed were the lenders and amounts.

With this particular complaint, the Ombudsman overturned the adjudicators decision to uphold my complaint, stating that the lender may not have been able to assess my creditworthiness as comprehensively as normal, due to the fact I had other outstanding loans that weren't reported by the other lenders. First time I've heard that argued, but I of course rejected this. I have at least 6 case studies of my own from the FOS where they have upheld IR complaints, all funnily enough from loans taken out before this particular one.

I have the most blatant evidence available which demonstrates it is pot luck whether an IR complaint is upheld depending on the individual at the FOS who handles your complaint.

Therefore, I am reluctant to take this to the FOS as I simply do not trust it will be handled fairly or accurately. Same goes for the ICO, the horror stories about some of their decisions would make the Steven Avery case look justifiable!

urm.. this could simply be resolved by a brief complaint letter to the ICO?

the oc might be advised by them to enter a default on the third missed payment date.

thus the issue would be somewhat resolved.?

there are very few successful court cases surrounding such issues.

I've not received a response from my notice of intended action, so on Monday I'll be submitting the claim form.

Now am I right in thinking, if a company such as this has numerous addresses for it's variety of trading names, I should use the address of the parent company listed on Companies House & FCA register? I'm not going to use their PO Box address, but I'm not sure their registered address is even occupied.

An update for you all.... I have received a settlement offer just days before I was able to apply for a summary judgement!

Their offer is made 'without prejudice (save as to costs)' and 'with no admission of liability', but I am going to accept it as it's a better offer than what my claim is for!

They are going to remove the account from my credit file with all CRAs, pay £250 in compensation, and take no further action against me for the outstanding balance on the loan account (effectively a full discharge).

:whoo:

Just goes to show, these payday lenders do not like it when you initiate legal proceedings against them. Even though they are settling to avoid costs, they know they'd be in trouble in front of a Judge had they defended.

...... A few members in this forum had very little faith in this claim to say the least... "you'll lose in court and badly", "waste of time" etc. When financial institutions are in the wrong and simply will not budge (especially payday lenders), I'd recommend anyone to take the litigation route. In as little as 6 weeks, I have the optimum outcome.

Might have a shandy tonight to celebrate!

so irresponsible lending won the day?

well done

who was the lender?

dx

Well my claim was based on their deliberate circumvention of ICO guidelines, the Limitations Act and the DPA. I did include irresponsible lending too, but who's to say what the victory is actually based on seeing as they still refuse to admit liability.

All that matters to me is that they'd rather settle than face court proceedings!

I'll reveal the lender once the settlement is complete and I've discontinued the claim.

Well done fairhead

If you could perhaps reveal once you have your settlement....this will benefit others who wish to follow your path.

Great result..thread title amended to reflect the outcome.

Regards

Andy

Well done fairhead

 

If you could perhaps reveal once you have your settlement....this will benefit others who wish to follow your path.

 

Great result..thread title amended to reflect the outcome.

 

Regards

 

Andy

The lender rhymes with... ermmm.... Layway Today

Name and shame...I will add it to the thread title:madgrin: