EXPERIAN... The final battle commences

[finlander]

ok I have several other threads posted and this starts at the tail end of one. I have been disputing my bank charges and my CCa agreements on 3 credit card accounts both for me and my wife. During these disputes we have incurded 4 defaults between us.

 

I have thought long and hard about how to get rid of these. the sssence is that all these accounts are in serious dispute and have been for over a year. The credit cards refuse to tke us to court as the agreements are unenforcable and the last one is a abbey current account where we have taken them to court and the trail has beened stayed. Abbey still registered a default.

 

Ok now how to get them removed????

 

My experience tells me that taking on each cmpany is

1. expensive

2.frustrating

3. very very slow.

 

so..no good then.

 

asking the CRA (experian) will rsult in

1. being told to speak to the companies (see above)

 

the information commisoner also seems to think it's ok for the CRa's and the companies to hold this info for 6 years and pass it on whether you like it or not. so sec 10 request is pointless.

 

so we are all doomed......

 

not quite....

 

firstly lets have a search on google......

 

mmmmm...type in Experian... lovely and default and guidelines....

 

loads of adverts for Experian...then

 

http://www.experian.co.uk/www/pages/downloads/compliance/guidance_on_defaults.pdf

 

 

mm very intresting.... especially page 15 onwards.... such gems from the ICO as......

 

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.

and of course there is......

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 accordingly7. 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.

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.

[*]Is the customer able to produce evidence that they disputed that a default occurred?

[*]Did the customer dispute the default before the lender announced their intention to file a default or after?

[*]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?

[*]What evidence has the customer produced to support their side of the dispute?




[*]Has the lender simply ignored this evidence or have they produced evidence to support their version of events?

how impotant is this view from the ICO?

 

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.’

 

Now.... that has got me thinking... If you ask Experian ...they say it's not their problem... but if that was the case why would the ICO think they needed a defence if they were so safe?....

me thinks they fibbing....

So in the way of the age old chinese expression I have decided to attack the head of the snake.

I INTEND TO MAKE EXPERIAN TAKE THESE ENTRIES OFF.

MY LOGIC IS AS FOLLOWS.

1 THEY ARE RESPONSIBLE FOR EVERYTHING PRINTED ON THEIR RECORDS. THEY ARE MAKING IT AVAILABLE. SO THE ICO THINKS ANYWAY

2. THEY ARE RESPONSIBLE FOR CHECKING IT'S ACCURACCY. (EVEN IF THEY DONT THINK SO THE ICO DOES AND IT'S ON THEIR SITE TO PROVE IT.)

3.THEY MUST ASK FOR EVIDENCE FROM THE BANKS TO PROVE THEY HAVE DONE EVERYTHING POSSIBLE TO SOLVE THE DISPUTE IF I PRODUCE EVIDENCE OF ONE.IF NOT THEN ITS STILL IN DISPUTE AND SHOULDN'T BE REGISTERED.

4.PUTTING ON A CORRECTION NOTICE IS NOT SUFFICIENT TO ALLOW A DEFENCE AGAINST DEFAMATION OR AN OFFENCE UNDER THE DPA.

If none of this is satisfied they must remove the defaults or buy me a new house with the compensation they have to pay.......

Ok this shot is the first in the battle..... lets see if it causes a stirr....

Dear Sir/madam

Re : Your refs ; xxxxxxxxxx & xxxxxxxxxxxxxx

 

 

 

I have recently conducted an audit of my personal credit reports supplied by Experian.

 

It is noted that there exists, defaults against both myself and my wife’s credit file concerning the above account.

 

I have reviewed the Information commissioner’s guidelines regarding credit reference agencies registration of defaults. These are published on your own website within the following link;

 

http://www.experian.co.uk/www/pages/downloads/compliance/guidance_on_defaults.pdf

 

They clearly state the following;

 

Data Protection Technical Guidance Filing defaults with credit reference agencies

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.

 

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 accordingly7. 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.

 

 

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.

As you can see the IOC seems of the opinion that it is the responsibility of the Credit Reference Agency to check that there data is accurate and not simply to refer the subject to the originator. Also if a dispute is proven then in his words-

 

‘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.’

 

I know intend to show how we are in fact in serious dispute with all four companies above and that these companies have been deliberately negligent in informing you of these defaults and the continued processing of those defaults would count as a ‘defamation of character’ against myself and Mrs Pearce.

 

• Barclaycard (your ref C2 on ref xxxxxxxxxx)
  

Mrs xxxxxx began action to reclaim her disputed charges from Barclaycard in 2007. These proceedings were subject to county court action in Chelmsford County court. This action was stayed pending the outcome of the oft test case. This was despite our objections that credit card charges were not subject to this test case. Despite this Barclaycard refused to request the court to lift the stay. However in Jan 2008 they refunded a large proportion of these charges. During our preparation for the court action in July 2007 a request was sent for a copy of the original agreement regulating this account under the Consumer Credit Act 1974 (CCA). This arrived and a copy is attached to this letter. As you can see this contains none of the prescribed terms required for this to be an enforceable agreement (I have attached another agreement no 7224012305177 in order to show a correctly formatted agreement). This rendered this agreement unenforceable by a court and also rendered it not an agreement under the CCA. We sought legal advice and were told that this was a breach of Mrs xxxxxx rights under the consumer credit act and therefore we should not acknowledge any debt. A letter was sent the Barclaycard saying this. Barclaycard have mounted a constant campaign of harassment whilst refusing to take Mrs xxxxxx to court. This can only be because they are aware that this agreement is not enforceable and would therefore be rejected by a court and searching questions asked of them. The last communication with Barclaycard was on 28th March 2008 (letter attached). According to your records the default was attached on the 1st March 2008. I think that you can see that this account is in serious dispute.

 

• Abbey National Bank account (your ref C3 on ref xxxxxxx and C2 on ref xxxxxxxx)
  

This was a joint account held by my wife and myself. In Jan 2007 we challenged disputed charges on this account. The whole amount shown defaulted on your system was made up entirely of disputed charges. Abbey national was served court papers and a trail date was set for August 2007(Claim Number xxxxxxx in Chelmsford County Court). This again was delayed by the OFT test case. The Abbey National registered the default after the stay was announced despite knowing that they were the subject of a court action and contrary to the banking code, which I quote;

 

The Banking Code (Section 13.6) states: We may give information to Credit Reference Agencies about the personal debts you owe us if:

· You have fallen behind with your payments,

· The amount owed is not in dispute; and

· You have not made proposals we are satisfied with for repaying your debt, following our formal demand.

 

Also The Office of Fair Trading Code of Guidance in which it states: putting pressure on debtors or third parties is considered to be oppressive This includes ignoring disputes about whether money is owed and refusing to freeze action if the debt is in dispute.

Again I think this shows that this account is in serious dispute and therefore under the Information Commissioners Office’s guide above no default should be recorded by your company . A letter is attached to show the depth of this dispute.

3.RBS CREDIT CARDS (C1on ref xxxxxxxx)

 

In July 2007, again after taking legal advice, I requested the above company provide me with a copy of my signed executed agreement under the CCA. They responded with the application form attached. Again you can see that the prescribed terms are not present and again that this is an unenforceable agreement. On legal advice I again contacted the company (letter attached) and stated I did not acknowledge this debt or agreement due to the infringement of my rights under the CCA and the removal of the protections this act offered. Again RBS have refused to take legal action but instead have registered a default with your company. Again I maintain that this account is in serious dispute and has been since July 2007. RBS have made no attempt to gain court authority to enforce this debt, as it is unenforceable.

 

Again I think this shows that this account is in serious dispute and therefore under the Information Commissioners Office’s guide above no default should be recorded by your company.

 

 

 

 

4.MBNA EUROPE BANK LTD (C8on ref xxxxxxxxxx)

 

In June 2007, again after taking legal advice, I requested the above company provide me with a copy of my signed executed agreement under the CCA. They responded with the application form attached. Again you can see that the prescribed terms are not present and again that this is an unenforceable agreement. On legal advice I again contacted the company (letter attached) and stated I did not acknowledge this debt or agreement due to the infringement of my rights under the CCA and the removal of the protections this act offered. Again MBNA have refused to take legal action but instead have registered a default with your company. Again I maintain that this account is in serious dispute and has been since August 2007. MBNA have made no attempt to gain court authority to enforce this debt, as it is unenforceable.

 

I think this shows that this account is in serious dispute and therefore under the Information Commissioners Office’s guide above no default should be recorded by your company.

 

The circumstances above outline the reasons why I object to any of these companies filing defaults against myself of my wife’s names. We have constantly sought the mediation of an independent arbitrator in the form of the courts and have been frustrated at every turn. It now appears that the Experian and the other credit reference agencies are being used to blacklist our name because we have stood up and asked for our consumer rights to be upheld.

 

This is making our lives difficult in the extreme. In the last 3 weeks our bank, which administers our current account, has withdrawn our chequebook after a ‘credit review’.

 

An application to Alliance and Leicester for a current account after the ‘credit review’ by our current bank, the most basic thing needed to function in this word has been turned down because of your company (see attached letter).

 

As you are aware, I am afforded principled rights under the Data Protection Act (Data Protection Act), Schedule 1, Part 1 ("The Principles") in relation to the manner in which my data is collated, stored and processed. Of particular note, are Principles 3, 4 and 5:

 

“3. Personal data shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed.

 

4. Personal data shall be accurate and, where necessary, kept up to date.

 

5. Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes.”

 

In our case, the companies registering these defaults are still processing data after the cancellation of the contract and in the majority of cases where no enforceable agreement exists. Whether or not this is a simple renewal process of the default flag, daily or by other timing factor. As that contract is no longer in situ, then my written permission has also ceased from the date of cancellation.

 

This is confirmed in Principle 2 of the Data Protection Act, which states:

"2. Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes."

 

I emphasise the term "specified and lawful purposes" as in ‘those specified within the contract’, and no more. I also emphasise the term "shall not be further processed".

 

I have taken the matter up with the companies concerned, and they had claimed that they had a

“legal right” to maintain this type of adverse entry for up to six years. When I challenged them to quote me the exact Statute that includes this so-called “legal right”, they remained remarkably quiet. Only after my continued insistence of disclosure did they eventually concede that, whilst they have no statutory right, it is

“standard industry practice” but they added that they are “allowed to by Law”. After further challenges, they finally admitted that unless this was a County Court issue, their term actually referred to contractual Law, but continued to emphasise that it was “standard industry practice to record default entries for six years.”

 

As a highly educated company secretary for a Credit Reference Agency may I respectfully presume that you likewise recognise that “standard industry practice” does not correlate with “legal right”?

 

Further investigation has also led me to conclude that the only six-year data ‘retention rule’, to which they may adhere to, is in relation to information in the public domain, e.g. Bankruptcy Orders/Discharges, IVAs, CCJs, etc. These are kept in the public domain for six years. But, these are sealed orders issued by a judge through the Courts who oversee the ultimate jurisdiction in all matters relating to Law, be it the criminal code or the Common Law. It is not up to Credit Reference Agencies, or lenders, to decide legal issues.

 

In addition, agencies may also hold information that is deemed ‘in the public interest’ for the avoidance of credit fraud or deliberate repayment avoidance; I refer, of course, to CIFAS and GAIN entries on a credit file. My former accounts were not subject to any such marker, nor is any alleged former civil contract with these companies a public matter.

 

After scrutiny of all the relevant legislation, including the Consumer Credit Act (As Amended), the various Financial Services Acts and the Data Protection Act, etc., it is clear that there is absolutely no legislation that allows a lender or supplier to collate, process or distribute any other information unless there is express written permission from the data subject.

 

In fact, Section 10 of the Data Protection Act awards the real authority, regarding privacy of data, to the data subject, not the Data Controller. The Act is also very clear as to the rights of the data subject in respect of withdrawing permission to continue data processing and disclosure:

 

10. - (1) Subject to subsection (2), an individual is entitled at any time by notice in writing to a data controller to require the data controller at the end of such period as is reasonable in the circumstances to cease, or not to begin, processing, or processing for a specified purpose or in a specified manner, any personal data in respect of which he is the data subject, on the ground that, for specified reasons-

 

(a) the processing of those data or their processing for that purpose or in that manner is causing or is likely to cause substantial damage or substantial distress to him or to another, and

 

(b) that damage or distress is or would be unwarranted.

However, there are some exclusion provisions for Data Controllers, and Section 10 does continue with various exceptions to subsection (1) above, and these are quoted, in full, below:

 

10. - (2) Subsection (1) does not apply-

 

(a) in a case where any of the conditions in paragraphs 1 to 4 of Schedule 2 is met,

or

(b) in such other cases as may be prescribed by the Secretary of State by order.

 

To paragraph (b), I can only presume that none of the companies mentioned above nor Experian have applied to HM Secretary of State for an order allowing an exclusion, which leaves both them and yourselves with the only remaining possibility of requesting an exemption under paragraph (a).

 

So, we must turn to the exemptions permitted in paragraph (a) to find where your Data Controller may invoke his perceived exemption to the Data Protection Act, namely, those listed in paragraphs 1 to 4 of Schedule 2. I have reproduced these exemption paragraphs, in full, below:

 

“1. The data subject has given his consent to the processing.

2. The processing is necessary-

(a) for the performance of a contract to which the data subject is a party, or

(b) for the taking of steps at the request of the data subject with a view to entering into a contract.

3. The processing is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by contract.

4. The processing is necessary in order to protect the vital interests of the data subject.”

 

It is my contention that your supposed right of obtaining an exemption is not contained within any of these paragraphs. I have followed each in turn with my notation to give a clearer explanation, should there be any lack of clarity.

 

1. The data subject has given his consent to the processing.

 

That consent was terminated upon the cessation of any alleged contract and, as stated earlier, I reiterate the revocation herein, and by the attached Statutory Notice.

 

2. The processing is necessary-

(a) for the performance of a contract to which the data subject is a party, or

(b) for the taking of steps at the request of the data subject with a view to entering into a contract.

 

For (a), there is no contract being performed, and for (b), these companies, Experian and I are not entering into any form of contract, and certainly not at my request.

 

3. The processing is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by contract.

 

According to the Information Commissioners Office (I.C.O.), exemption 3 includes all other statutory obligations for which the interests of national security and welfare override personal privacy.

 

These obligations allow for the provision of data to Official agencies and organisations, e.g. disclosure to crime prevention agencies (Police, Intelligence Services, etc), official Government agencies (DVLA, DSS, Passport Agency, etc.) and health authorities, etc., and for any other purpose not agreed within a civil contract.

 

We all know that the four companies mentioned and Experian are not Government bodies, nor official agencies, but for-profit companies, even though they like to think they are official. None of these companies are listed in the appropriate Data Protection Act Schedule that names the specific organisations that are permitted any such exemption rights.

 

4. The processing is necessary in order to protect the vital interests of the data subject.”

 

With reference to the I.C.O. again, this is interpreted as anything that affects the data subject as a matter of life and death. This clause is included in the Data Protection Act to permit data, like medical records or contact details, being disclosed in emergency situations. I do not believe that my details could be described as anything like a matter of life or death.

 

So, it is clear to see that there is neither statutory provision permitting your Data Controller to assume continued processing rights of my data at his discretion, nor any exemption. I can then only assume that both you and the companies below are relying on the Common Law, and contractual law, as determined by the contract that both parties allegedly agreed.

 

However, the alleged agreements that we originally signed with the bank, only gave permission to process data during the term of that contract. I think it is fair to assume that you agree that the contract was terminated some time ago, whether or not a Default Notice was served within the remit of the consumer credit act.

 

The contract neither included any other permission, nor did it imply that your perceived 'rights' to process our data would be ‘in perpetuity’. There was also no clause contained within the contract that stated that you had any arbitrary right to continuing processing data for up to six years after the ending of the contract.

 

Also, I cannot recall any clear statement that gave my express permission for you to disclosing my subject data to third parties after the end of the alleged contract. You are no doubt aware that any non-agreed disclosure of personal data to third parties, without express written permission, is a criminal offence under Section 35, of the Data Protection Act.

 

However, if I am mistaken, and the contract did, indeed, specify unlimited time extensions, then you must provide me with a copy of those signed terms indicating where I have agreed to them. This should be sent to me as one of your enclosures, if you wish to contest the enclosed Statutory Notice. You should be aware that you have, by statute, twenty-one days in which to either comply with my Notice, or give written notice stating your reasons and why you consider the Notice unjustified.

 

In summary, in relation to the accounts, I am formally instructing you, as an authorised officer of the Experian, from this day onwards, to:

 

1) Cease to continue storing, processing or communicating my data In relation to any alleged agreements notified to you from;

BARCLAYCARD (your ref C2)

RBS CREDIT CARDS (your ref C1)

ABBEY NATIONAL BANK ACCOUNT (your ref C2and ref C3)

MBNA EUROPE BANK LTD. (your ref C8)

2) remove all such data from automated process systems, as per the provisions of Part II, Section 12 (1) of the Data Protection Act, namely:

(1) An individual is entitled at any time, by notice in writing to any data controller, to require the data controller to ensure that no decision taken by or on behalf of the data controller which significantly affects that individual is based solely on the processing by automatic means of personal data in respect of which that individual is the data subject for

the purpose of evaluating matters relating to him such as, for example, his performance at work, his creditworthiness, his reliability or his conduct.

 

Of particular note is the Acts own term “his creditworthiness”;

 

3) cease to disclose any data from the above companies to any third party.

 

 

 

Any failure on your part to adhere to the statutory timescales will automatically be interpreted as your non-compliance with the legal procedure. In that case, you will be expected to unconditionally comply with my Statutory Notice or I shall have no alternative but to refer the matter to the Court to seek an Order to that effect. Should it be necessary to refer the matter to the Court, and then I shall also apply for Court fees and legal costs against the Experian. I shall also reserve the right to seek further redress for damages as per the remit of the Data Protection Act.

 

I do not except that this information belongs to your clients and you have no responsibility for its accuracy. You are publishing these calumnies and defaming my and my wife’s names without demanding proof of the accuracy of your data.

 

As stated at the beginning of this letter I feel that the information held by your company and distributed is neither accurate nor relevant. It appears to me that Experian is being used by these companies as a method of bypassing the courts system and blacklisting those who stand up for their rights.

 

The case of Kpohraror v Woolwich Building Society - [1996] 4 All ER 119 set a presumption that in a situation of a wrongly registered default an aggrieved party should be awarded compensation of the amount defaulted plus £1000.

 

The judge explained his decision thus -

 

‘It is abundantly clear, in my judgment, that history has changed the social factors which moulded the rule in the nineteenth century. It is not only a tradesman of whom it can be said that the refusal to meet his cheque is 'so obviously injurious to his credit' that he should 'recover, without allegation of special damage, reasonable compensation for the injury done to his credit'. The credit rating of individuals is as important for their personal transactions, including mortgages and hire purchase as well as banking facilities, as it is for those who are engaged in trade, and it is notorious that central registers are now kept. I would have no hesitation in holding that what is in effect a presumption of some damage arises in every case, in so far as this is a presumption of fact. So the question becomes whether the authorities compel the conclusion as a matter of law that the presumption cannot extend beyond the category of trader. In my judgment, they do not.’

 

I trust that I have made my position clear, and that Experian will now make a serious effort to understand its legal obligations and effect the changes requested. Should you be in any doubt as to the your obligations as a Data Controller, then I would advise that you consult your corporate counsel.

 

I await your reply.

 

 

 

We reserve the right to commence legal action at any time

[havinastella]

subbing

[finlander]

This is going to be a long battle me thinks... thats why I have started this seprate thread for experian... but I will not give in and will post all correspondence with them. Any advice I will be grateful. I believe this is our chance to win.....

[Bigmac versus]

Im pretty sure that the next big thing after bank charges is going to be CRA's. Subsribed.

[finlander]

Well as far as I can tell the standard reponse from evil castle CRA is 'its not our problem we just put on what we are told by our clients'...

 

translated this means... 'we publish what we are told... don't really care if it is true'...

 

Now I don't think anyone else in the publishing world would get away with that...

 

it appears that the ICO... who has told others differnet in the psat....now tells the CRA's in the link above that it is their reponsibility and if there is a dispute.. a default shouldn't be registered....

 

My thinking is with the CCA requests unless they have given you a copy..taken you to court etc there is a dispute... If they have refused to take you to court then it seems obvious that they arnt letting the court system, an independant arbitrator, deal with the dispute but are using the CRA's as a blacklist.

 

The ICO seems to think that is naughty...lets pin them all down and see...

[vogelrok]

this is the last response i got back from them.

 

Thank you for your queries received on 13 and 16 June 2008. In view of your comments about the Barclays defaults, I am writing to them for you, as I cannot amend your report without their consent.

 

While I investigate your comments, I am adding the following statement to the entries you have queried. "THE ACCURACY OF THIS DATA HAS BEEN DISPUTED BY THE INDIVIDUAL CONCERNED AND WE HAVE NOW CONTACTED THE SUBSCRIBER. CARE SHOULD THEREFORE BE TAKEN WHEN USING THIS ITEM OF DATA TO ASSESS THE CREDITWORTHINESS OF THE INDIVIDUAL CONCERNED."

 

I will let you know what they say as soon as they reply.

 

Your report will change in the next seven days. Please use this correspondence if you need proof in the meantime. We will tell all the companies that have searched your credit report in the last six months about the change to your information.

 

 

going to sub to this thread. as taking them across the coals to.

 

seems if you challenge them right way you get somewhere with them.

 

great letter Finlander.

[Hobbie]

subbing

[finlander]

vogelrock...

 

thats what I'm expecting back... but remember this from Experian's own site.. from the ICO

 

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 accordingly7. 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.

What ever they say.. if they cant confirm it as 100% true........ its there responsiblity to remove it... or face the music... and dance if they want to . Thats the line Im gonna take and all the way if necessary.

 

 

If anyone else has some intresting arguements they have put up to counter defaults under dispute do let me know. I have a while to wait until they answer so would like to get an idea of the rubbish they will come back with......

[finlander]

they can amend your report without the lenders consent...otherwise why would the ICO say...

 

if the lender is unable to substantiate the disputed information in that time, should suppress the information from the file.

 

Liar liar....pants on fire

[vogelrok]

wonder if we are going to have to do this with every CRA though.

 

i haven't checked my equifax one yet, but have checked experian and call credit both had different results. dealing with both of them at present to get unlawful defaults removed.

 

Call credit are a bit slow but they are getting the hang of it. i ask a question they dont reply i send it again i get a response.

 

Experian have amended the linked addresses but im still not happy about this 8yr rule they quoted.

 

so keep at them. experian = abbey = santander.

[finlander]

once we have defeated the evil Experian... and if needed gone thorugh the ICO and the court.. I think the others should fold easily. Once you have defeated one then the others would have to come up with a new arguement or cave in.........

 

Simple letter...dear Mr ICO...remember that arguement I just won against experian..well callcredit/ equifax are being w*****s too.....

 

Thats gonna be my plan anyway...

 

but lets defeat experian first.........8-)

[bobbyh99]

I have in writing from Callcredit that after 28 days they will suppress the information, however I haven't had this from Experian or Equifax!!

 

I have pointed them in the right direction though! we'll see!!!

 

BobbyH

[Dipply75]

Nice one Finlander. Subbing as this is an issue which has been bugging me for days now. After getting my (wildly different) files I started asking questions about the 'rules', what checks are done etc and was shocked and disgusted.

 

A COMPANY (not a government/legal institution) who makes money out of collecting, storing, publishing and selling our private financial data makes no attempt to confirm or verify the accuracy of the info they are providing - and take no responsibility if it is wrong.

 

To me, that is just pure and simply breaches our basic protections under the Data Protection Act - if any other company did this there would be hell to pay - so what is this magic protection the CRA's seem to have??

 

From what I can gather - most of this is done by e-mail etc and basically, if a company (DCA etc) has an account with the CRA (paying them lots n lots) then they just send a message something like "Mr X has defaulted on X date for X amount - please note this". As they are good paying customers, is that it? What checks/verification is done after that? Nothing methinks.

 

Here's a question - how do you start up a CRA. Good profit, immunity etc, anyone fancy it?! What do you actually need to start one - ie what do they have?

[foolishgirl]

Great reserach, good argument Finlander. You'll be a hero of CAG if you pull this one off! Good luck, subbing with interest...

[espacedout]

Hi all long time reader first time poster.....

 

In a site as full of useful information such as this offers this thread is a real standout to me. I wish you all the best in your battle Finlander.

 

I was inspired by this thread to approach my two default problems along these lines and have duly written quite a long letter to my new best friends at Experian. I'm not going to reproduce the whole thing but there were a couple of points I picked up on in Finlanders reasoning and expanded in my representation. I'll reproduce them here feel free to point out any errors in my thought train.

Just to generate a little interest in my post I'd like to point out that the offending DCA's are two Board favourites Link Financial and yes you guessed it Cabot. Both defaults were issued prior to contacting me in the matter (by two years in Cabots case) and relate to two credit card accounts. Both alleged debts are composed entirely of illegal charges which mysteriously accumulated over a period of two years after I assumed the accounts were closed.

 

Preamble Blah, blah, blah

 

Then I introduced the recent Consumer protection From Unfair Trading Regulations 2008 just so Experian can be left in no doubt that the term lender and any legal obligations as such should be applied equally in cases where a DCA has assumed the alleged debt thus.

 

{Under the The Consumer Protection from Unfair Trading Regulations 2008 it is made quite clear that for the purposes of the law, any legal obligations by the original “lender” are to be applied to any party such as a Debt Collector who subsequently tries to pursue the alleged debt. Since one of the Companies involved in my case (Link) have in the past used their peculiar interpretation of the Sale of properties Act 1925 as giving them licence to use two companies namely Link Financial UK Ltd and Link Financial Europe Ltd to chase the same debt with one Company being assigned the rights but not the duties thus (quite mistakenly in law) assuming exemption from lenders obligations under the Consumer Credit Act 1974, this is a particularly pertinent and helpful clarification. Notwithstanding the obvious implications under the Data protection Act 1998 of two “independent” Companies sharing data freely between themselves, any wrongly assumed legal right to non compliance has been clearly outlawed with effect from May 26th 2008}.

 

 

I then made a statement of facts in which I described the shortcomings of the DCA's in the matter.

 

 

I then proceeded in a similar vein to Finlander to describe the implications of the Information Commissioners Office's guidance with the following changes/additions.

 

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.

Such notice does not exist for either account. The defaults were lodged with yourselves prior to either Company contacting me

 

Part-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’.

 

{Bad news for Experian.} However, this defence is only available if the agency takes reasonable steps to make sure the data is accurate

You do not make any attempt whatsoever to substantiate the data.

and, as soon as they become aware of the challenge, takes steps to mark the file accordingly

Quite clearly “And” is the key word here. To be available for defence BOTH criteria must be met. Clearly not the case in my respect or anyones for that matter I'd guess

 

The CRA's just believe and disseminate anything anyone tells them, they do not check prior to lodging information, the onus is on the data subject to discover the problem and then prove their innocence.

 

 

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

 

 

Whammo!!!!

 

Upon receipt of this letter Experian are now of the knowledge that the two defaults are disputed by myself.

 

So:I continue

 

Having by virtue of this letter made you aware of inaccuracies within the information you hold about myself it is my understanding that you are now obliged to contact both Link Financial and Cabot in this matter in the manner prescribed within these guidelines ie. that you obtain correct documentary proof such as a properly validated copy of “The Notice To Default”, and a copy of the original executed credit agreement as described within The Consumer Credit Act 1974 Secs. 78-79. Obviously you are aware that an application form whether signed or unsigned does not comply with the acceptable documentary proof proscribed by this Law. I also expect you to ascertain beyond reasonable doubt that no charges which have been upheld to be illegal have been applied to these accounts (see below) .

(It is for you to decide what constitutes acceptable substantiation since no description is offered within the guidelines, but I suggest that since you will be held ultimately culpable in this matter and will have to rely on this information as your legal defence that you are stringent in your assessment relating to the compliance of any “evidence” supplied by the aforementioned DCA’s).

 

Well I've CCA'd them both myself and had the usual noncompliance and nonsense probably not easy for them to find the neccesary info when both cards were first issued last century, but anyway, let's shift the onus from me onto Experian. After all I'm sure the Legal Eagles at Experian are far better qualified to judge whether a smudged photocopy of an unsigned application form is sufficient to defend the reputation and integrity of a reputable Company like Experian in a Court of law than I would ever be:).

This way I get to re-CCA them both for the cost of a single first class stamp.

Already I'm 2X £1 Postal Orders up, and 2X recorded deliveries up that's about a fiver in old money.

 

And I get free Legal aid courtesy of Experian when the DCA's abjectly fail in their responsibilities.

 

After this bit:

"I also expect you to ascertain beyond reasonable doubt that no charges which have been upheld to be illegal have been applied to these accounts" .

 

I included a reference to the Woodbridge Lease precedent leaving Experian in no doubt that they will need to be 100% confident of the DCA's assertions if they are to avoid litigation.Even "nearly right" could be very expensive for Experian.

 

 

After a bit more waffling I concluded by citing the Kpohraror v Woolwich Building Society - [1996] 4 All ER 119 precedent detailed above by Finlander

 

Then I did some sums for them which showed that I would be claiming approx £1400 for one offence and £2500 for the other. Bizarrely (or so I thought 'til I found this site) Link Financial chose to register the default against my wife too.A bit more number crunching and we reach £6400 liability excluding any costs or Industry fines for Experian if they choose to ignore my request in this matter.

Tomorrow I will edit Experian out of the letter and change it to Equifax and threaten another £6400's worth of compo claim.

 

Oh and at some stage I'll reclaim all the illegal charges outstanding on these accountswhich in both cases exceed the amounts claimed as being in default.

 

 

 

 

[SURFBOY]

Subbing to this thread as i am soon to embark on my default removal quest.

[finlander]

well this is fun isn't it.... Nice to see all you good people ready to do battle..

 

I'm gonna keep this battle simple I think and just stick to Experian first.

Go after the other two when the first victory is still fresh.

 

so heres the paln...

 

1. first letter sent 19/06/2008

 

2. They will write back with... note your dispute... recommend you contact lenders (rather waste my time sticking my face in a blender) will put a correction notice on your file. please wait 28 days for response

 

3. I will say ok. Wait 28 days

 

4. they will write back say 'sorry but lenders have said they are right and swore on their mothers grave they were' so defaults stay but will keep the correction notice on.

 

5. I say 'b*****ks' and complain to IOC... he either finds for me... I win equifax and callcredit next... or he says defaults stay.

 

6 In that case its court, damages etc.

 

I expect it to go this way but who knows they might surprise me and do the honerable thing... I doubt it tho...

 

BUT REST ASSURED THEY WILL LOSE..........:grin: i have nothing to lose but my chains.... they have everything to lose....

 

 

anyway we await their reply in stage 2 as above.......

[midge61]

Hi

 

Espacedout just one small point the charges are UNLAWFUL not illegal.

 

Great thread....very intersting

[Dipply75]

even though it is the simplest, 'dumb' question, I am going to ask it anyhoo.

 

Are the CRA's, as a data controller, refusing to take any resonsibility for the accuracy of the data they store, publish and make profit from?

 

Are there any, just basic checks they do? I ask as I am in the 28 day waiting period and am just expecting the 'sorry the default stands' and want to start arguing their processes 'informally' and see what they say/make up

[vogelrok]

at stage 2 with experian 28days was started

 

have had 2 notices of correction now.

 

asked why my mortgage company have 2 defaults listed against me on the same day. but for 2 different amounts.

 

these are the notices

 

Y1 / THE ACCURACY OF THIS DATA HAS BEEN DISPUTED BY THE INDIVIDUAL CONCERNED AND WE HAVE NOW CONTACTED THE SUBSCRIBER. CARE SHOULD THEREFORE BE TAKEN WHEN USING THIS ITEM OF DATA TO ASSESS THE CREDITWORTHINESS OF THE INDIVIDUAL CONCERNED.

11 / DISPUTED BY THE INDIVIDUAL CONCERNED AND WE HAVE NOW CONTACTED THE SUBSCRIBER. CARE SHOULD THEREFORE BE TAKEN WHEN USING THIS ITEM OF DATA TO ASSESS THE CREDITWORTHINESS OF THE INDIVIDUAL CONCERNED.

 

have also just noticed Cabot haven't updated my credit report with experian. but they have with callcredit. even though it is in dispute with callcredit. can see a letter going to them later today with regards to this.

[phatram]

Subbing

[Sparkie1723]

Subscibing to this thread, have a personal interest in this as I have allready written to Experian in a similar vein as Finlander and so far the ony answers I have got to most of the question posed by Finlander is and I'll post these later as soon as I can in between my big fight with RBS over a default and lots of other claims....But most of my questions and allegations received the reply....no comment.....no comment .....no comment from Experians compliance unit.

 

I've give them somehing to think about and finlander is going to give them some more .....the more letters to Experian will make things happen.

 

 

sparkie

[lickthewallfatboy]

subbing

[sosumi]

Subbing and linking!!!

[car2403]

I'm not wanting to burst your bubble here, but I do think this is ground some of us have already tread;

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/111211-defaults-background-removal-methods.html