Breach DPA what can I claim for

[thesergeant]

What can I claim?

 

Kensington mortgages falsely placed a default (Late payment marker) on my credit file. This took several letters and phone calls to resolve. Which they begrudgingly did.

 

I asked them for £75, they offered £25 which I turned down. I want to pursue my costs.

 

I have now found that they have only taken the default off of Equifax. It is still on my Experian file.

 

Should I pursue a claim with the ICO or should I pursue via County Court claim. Can I claim for costs for making them amend their breaches of the DPA?

 

Advice please ................. :D

[Guest louis wu]

I think you need to contact them and ask why the Experian record has not been removed. You may have to find out if the fault lies with the CRA or kensington mortgages before you escalate this (especially with regards to a court claim, as this should always be a last resort)

 

I believe Call Credit are also a recognise CRA now, so it may be worth checking with them to see if the default has been removed

 

Order your Callcredit credit report

 

best of luck

 

louis

[thesergeant]

Thanks for the reply.

 

What are my rights to fair compensation for there breach of the DPA and reticence to remove the default notes. Especially considering that they are fully aware of the breach having removed the default form Equifax but have appeared to have failed to remove them from other information holders?

 

Do I have to accept there pitiful £25 offer ?

[Guest louis wu]

Can't help with the compensation issue, but 1/3 of what you asked for, without the hassle of taking it further, must be tempting.

 

I would definately be more concerned about correcting the entries, however, before I got into the serious business of compensation though.

 

louis

[midge61]

Hi

 

You might find some help in the following thread.

 

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/115630-pricing-default.html?highlight=pricing+default+compensation

[Guest louis wu]

Midge, I think you'll find that the sergeant is already subscribed (and has participated in that thread)

[thesergeant]

Louis,

 

Yes there is the £25, however it has cost me more in my time etc to get them to correct the breach of the DPA. Especially now that they haven't even bothered to correct all entries.

 

They are taking the p@ss. They don't acknowledge they are in the wrong.

 

For a single late payment they would take £50 from me.

 

I am of the view that I require proper compensation for the breach of the DPA.

 

However, how do I pursue that legally? There are templates in the library are they applicable in this case? Is this a small claims matter? Can I claim for costs? Has anyone done so successfully?

[car2403]

You can claim compensation, as the information is wrong in that you weren't late with payments. If it's a Default they've recorded, that is even worse, as already mentioned. (Are you sure it's a Default and not just late payments being recorded?)

 

The Information Commissioners Office should be your first port of call, but I don't think you'll get any joy from them - I'm also not sure if they can award damages under the Act, as they only offer opinions and not Judgments?

 

If they don't, it would have to be a Court claim, but they will be arguing that a £25 payment was offered and you refused, so YOU may end up paying THEIR costs if the Court deems that as unreasonable.

 

You're on dodgy ground there, IMHO - get the Default/late payment markers removed and take the costs on the chin, I'd say. What are your costs anyway? A few letters/phone calls? How can you justify wanting another £50?...

[thesergeant]

Right I have now completed my FOS complaint form, copied everything up and popped it in the post.

 

Lets see what happens now

[thesergeant]

To explain I have seen other threads where complaints have been made to the Financial Ombudsman Service for defaults etc, they have a scale of compensation that can be ordered. For this sort of thing in the 0-£300 range.

[car2403]

Yes, but the Court is bound by the decisions in that thread - the FOS isn't, apparently!

[thesergeant]

Not sure but the FOS site states

>>>>>>>>>>>

Advantages

• it is free
  
• it is private and confidential
  
• it is relatively quick
  
• it is independent of the companies it investigates
  
• there is no need to attend a hearing
  
• the decision is binding on the company but not on the consumer, so the consumer can still go to court if dissatisfied with the outcome

>>>>>>>>>>>>>>>

 

I'm putting my complaint in their COurt so will keep you posted

[noomill060]

Go to court, claim £200 damages, court fee and interest and put:

 

"Damages and costs at the descretion of the Court" at the end of your POC.

 

That way you give the judge the final say as to what you get.

 

From my own experience with DPA damages, my guess is that you wont have to go anywhere near a Court...

[noomill060]

I have claimed £200 for Data Protection Act damages several times, never has a financial institution or DCA had the bottle to meet me in front of a judge.

 

On each occasion they have paid up pre-trial.

 

The £25 they offered is simply to tempt you. In offering you anything they know they are onto a loser if you start a Small Claim.

[noomill060]

Send them a letter accepting the £25 in part-settlement only, on the understanding that you will pursue them for the balance of damages suffered, through the Courts.

[noomill060]

You can only do the FOS thing if you have had their "Final offer" letter.

 

Have you? If not, FOS will not be able to process your complaint.

 

Small Claims will get the matter sorted a lot quicker.

[thesergeant]

Yes I had a final response letter from Kensington.

[thesergeant]

noomill060,

 

Should I claim for each CRA that Kensington has entered a false "late payment" marker onto. Or one claim covering it all ?

[car2403]

it's the same Default, so one claim for them all with each CRA as a co-Defendant.

[thesergeant]

noomill,

 

A couple of other questions:

 

I have a long running battle with Lloyds re non-compliance. The ICO have ruled against them and ordered compliance. Do I have to make an initial request for damages and then an LBA. Or do I go straight to Court. They still haven't complied.

 

Next

 

Is a claim for "wrong data" ie Late payment marker entered in error by them. The same as a non-compliance claim.

What would replace the para "On XXXXX the Claimant sent a Subject Access Request, pursuant to Section 7 of the Data Protection Act 1998 to the Defendant." In regards to my request for the incorrect data to be removed?

[thesergeant]

bump - anyone?

[car2403]

noomill,

 

A couple of other questions:

 

I have a long running battle with Lloyds re non-compliance. The Information Commissioners Office have ruled against them and ordered compliance. Do I have to make an initial request for damages and then an LBA. Or do I go straight to Court. They still haven't complied.

 

Next

 

Is a claim for "wrong data" ie Late payment marker entered in error by them. The same as a non-compliance claim.

What would replace the para "On XXXXX the Claimant sent a Subject Access Request, pursuant to Section 7 of the Data Protection Act 1998 to the Defendant." In regards to my request for the incorrect data to be removed?

 

Initial approach and LBA are a must to ensure your claim ISN'T thrown out, yes.

 

Do you have a thread for each of these? Especially as I don't think you can claim to have late payment markers removed! :o

[thesergeant]

car2403,

 

Why do you think that I would not be able to claim for a falsely added Late Payment marker?

[car2403]

car2403,

 

Why do you think that I would not be able to claim for a falsely added Late Payment marker?

 

I think you can, but only if you can show that the data is wrong in that a payment that was due was made when it is being reported as not being made.

[thesergeant]

That is what has happened to me. I re-mortgaged the Kensington matter was settled in full by telegraphic transfer on 31/8. However they sent me a late payment letter for the September payment. I spoke to them, they acknowledged receipt of the full settlement and said it was just an oversight on their part. However late payment markers went on my credit files. After a number of letters they finally removed the Equifax one, but have not removed any others.

 

This is my POC - Any thoughts ?

 

BRIEF DETAILS OF CLAIM

Order under section 13 & 14 of the Data Protection Act 1988.

Damages

 

 

 

PARTICULARS OF CLAIM

 

 

1. The Defendant is a Data Controller within the meaning of the Data Protection Act and is responsible for the processing of data of which the Claimant is a Subject.

 

2. The Claimant had an account number xxxxx ("the Account") with the Defendant which was opened on or around 22nd August 2002 and closed on or around 31st August 2007.

 

3. On 31st August 2007 the Claimant settled this account in full by way of remortgage and telegraphic transfer. The defendant acknowledged that this payment was received on that date, settling the account in full as required by the defendant’s redemption statement.

 

4. On or about 2nd September 2007 the Claimant received a late payment letter from the defendant. The Claimant contacted the defendant on or about 12th September 2007 and was assured that this was inaccurate information and that no late payment fee or notification to a Credit Reference Agency would occur.

 

5. The Claimant examined his Equifax credit file in October 2007 discovering that a late payment marker had been placed on his file concerning inaccurate data that there had been an expected September 2007 payment.

 

6. The Claimant has repeatedly corresponded with the defendant in an attempt to resolve this matter. The defendant has stated that all CRA’s were updated on or about 14th November 2007. On or about December 2007 the Equifax late payment marker was finally removed.

 

7. The Claimant has found that the same late payment marker was placed by the defendant on his Experian credit file and that this has not been removed.

 

8. The defendant's failure to comply with the Section 14 of the Data Protection Act 1988 has led to the Claimant suffering damage.

 

9. The damage caused is:

 

Extra costs incurred in addition to court costs, due to the Defendants failure to comply - this includes the cost of additional correspondence and time spent preparing documents and seeking legal advice, I estimate this cost to be £...........

 

10. The Claimant seeks an order that the Defendant do comply with the Claimant's requirement under Section 14 DAP 1988. That the defendant states all CRA’s to whom inaccurate information concerning the Claimant has been exchanged and that the inaccurate data has been removed from the claimants credit file with all of those CRA’s.

 

11. Damages and costs within the discretion of the Court.