EXPERIAN... The final battle commences

[BlueSmartie]

Really?

 

The Jury is still out here.

 

Cheers,

BRW

 

Is that 'really?' - am I not a banker, or 'really?' have I learnt anything? Well, the creditors I have seen off so far will probably agree that I'm not their friend and that I have done my homework!

[tinkerbell20]

Absolutely right - but an agreement can be more than one page, and if separate T&Cs are referred to on the app. form, they are treated as being 'embodied' (included) in the agreement:

 

From CCA s189 (4) - definitions:

 

(4) A document embodies a provision if the provision is set out either in the document itself or in another document referred to in it.

 

So where that judgement says the prescribed terms cannot be in 'another document', that doesn't include any document that is referred to in the signature page/application form - such a document is part of 'the agreement itself'.

 

Thats ok for basic T's & C's but not for the Prescribed terms.

ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated.

[thecteam]

Bluesmartie. if i was going to say you was a spy i would say so. i wouldn't hint at it. no point not being a straight talker. paranoid or what.

[babybear39]

But regardless of that ...isnt this...

 

House of Lords - Wilson and others v. Secretary of State for Trade and Industry (Appellant)

 

the final part of the wilson saga...

 

I did point out that way back in the thread

[BlueSmartie]

No, I'm not paranoid - it's just that it must seem a bit odd when a member with only a few posts starts piping up with contradictory statements and I can understand if you did think I was a spy. I ain't though - and I just wanted to emphasise that.

 

Anyway, I'll get back to my 'home' forum now (where I'm known) and I apologise to Finlander for taking his thread off track.

[Sparkie1723]

Will everyone look at the Regs posted below, I've looked and i cannot find anywhere in these regs that say a CRA CANNOT remove any info without the permission of a creditor....might have missed it so will folks check.....if this doesn't say that we can all say that whn a CRA says it can't remove stuff with the creditors permission ...they are telling porkies

 

sparkie

 

SCHEDULE 1Regulation 4(1)

 

 

 

CREDIT REFERENCE AGENCY FILES

 

 

INDIVIDUALS (INCLUDING SOLE TRADERS)

 

YOUR RIGHTS UNDER SECTION 159 OF THE CONSUMER CREDIT ACT 1974, AND UNDER THE DATA PROTECTION ACT 1998, IF YOU THINK ANY ENTRY IN OUR FILE IS WRONG

This statement of your rights is provided by[7] together with all the information we hold about you on our files. Our postal address is[8].

 

Your rights are as follows -

 

If you think that any of the information we have sent you is wrong and that you are likely to suffer because it is wrong, you can ask us to correct it or remove it from our file.

 

You need to write to us telling us what you want us to do. You should explain why you think the information is wrong.

 

If you write to us, we have to reply in writing within 28 days.

 

Our reply will tell you whether we have corrected the information, removed it from our file or done nothing. If we tell you that we have corrected the information, you will get a copy.

 

If our reply says that we have done nothing, or if we fail to reply within 28 days, or if we correct the information but you are not happy with the correction, you can write your own note of correction and ask for it to be included on our file.

 

To do this, you will need to write to us within 28 days of receiving our reply. If you did not get a reply from us and you want the information we sent you to be corrected, you will need to write to us within 8 weeks of the letter you wrote to us in which you asked us to correct the information or remove it from our file.

 

Your letter will need to -

 

 

• include the note of correction you have written. It must not be more than 200 words long and should give a clear and accurate explanation of why you think the information is wrong. If the information is factually correct but you think it creates a misleading impression, your note of correction can explain why.
  
• ask us to add your note of correction to our file and to include a copy of it whenever we give anyone any of the information you think is wrong or any information based on it.
  

If we accept your note of correction, we have to tell you in writing within 28 days that we are going to add it to our file.

 

If we think it would be wrong to add your note of correction to our file, we have to apply for a ruling from the Data Protection Commissioner.

 

We will apply for a ruling if we do not want to include your note of correction because we think it is wrong, or because we think it is defamatory, frivolous or scandalous, or unsuitable for publication for some other reason. We can only refuse to include your note of correction if the Commissioner agrees with us.

 

If we have not written to you within 28 days of receiving your note of correction, or if we have written telling you that we are not going to add your note of correction to our file, you can appeal to the Data Protection Commissioner.

 

If you want to do this, you will have to write to the following address[9] -

 

The Data Protection Commissioner

 

Wycliffe House

 

Water Lane

 

Wilmslow

 

Cheshire

 

SK9 5AF

 

Telephone no. 01625-545700

 

Fax no. 01625-524510

 

e.mail: data@wycliffe.demon.co.uk

 

When you write, you must give the following details -

 

• your full name and address
  
• our name and address
  
• details of the information you think is wrong, including -
  
  why you think it is wrong,
   
  why you think you are likely to suffer because it is wrong, and
   
  an indication of when you sent us your note of correction.
   
  

It would be helpful to the Commissioner if you could include a copy of your note of correction.

 

Before deciding what to do, the Commissioner may ask us for our side of the story and send us a copy of your letter. In return, you will be sent any comments we make.

 

The Commissioner can make any order she thinks fit when she has considered your appeal. For example, she can order us to accept your note of correction and add it to our file.

 

If at any stage we fail to correct or remove wrong information, you can ask the Data Protection Commissioner to check whether we are meeting the requirements of the Data Protection Act 1998.

 

The Data Protection Act 1998 requires us to take reasonable steps to check the accuracy of personal information. If you think we have failed to correct or remove wrong information about you, you have the right to ask the Data Protection Commissioner, at the above address, to check whether our dealing with your information has met this requirement.

 

Important Note: The various time limits referred to in this statement (mostly 28 days) start with the day following receipt and end with the day of delivery. That means (for example) that if you have 28 days to reply to a letter from us, the period starts with the day after you receive our letter; and you then have to make sure that your reply is delivered to us no later than 28 days from that date. In order to avoid the risk of losing your rights you should therefore allow for postal delays.

[babybear39]

Nope can't see it...

[Sparkie1723]

Nope can't see it...

 

Hi babybear and everyone that means if there are no regulations that say so, when a CRA tells you they cannot remove the data without the creditors permission ...they are making a negligent misrepentative statement

S2(1) Misrepresentation Act 1967

Negligent Misrepresentation

For negligent misrepresentation the burden of proof rests on the representee to show that they had reasonable grounds for believing it to be true. This can be a heavy burden to discharge

sparkie

 

 

 

 

[Sparkie1723]

Your message and replies

 

Just sent this e-mail to call credit about a default on my credit file. Lets see what they make of that

 

Dear Callcredit,

Under section 159 and consumer Credit Regulations, I can see no regulation tat states that a CRA cannot remove data without the consent of the creditor/supplier of that data. This being so when you tell me that you cannot remove it without the consent of HBOS you are actually making a negligent misrepresetative statement under the misrepresentation Act 1967.

 

S2(1) Misrepresentation Act 1967

Negligent Misrepresentation

For negligent misrepresentation the burden of proof rests on the representee to show that they had reasonable grounds for believing it to be true. This can be a heavy burden to discharge. Therefore I again demand that this entry be removed. Yours sincerely sparkie

2008-08-08 15:36:42

Edited August 8, 2008 by Sparkie1723

[thecteam]

i cant see anything in them regs that says they cant remove it. so they been lying for how long.

 

nice one sparkie1723

[Sparkie1723]

i cant see anything in them regs that says they cant remove it. so they been lying for how long.

 

nice one sparkie1723

 

Ho thecteam

I know for a fact that HBOS havent got that agreement because for 12 months I fought Experian and Equifax in the end they both suppressed the default it isnt on my files with them,....its Callcredit thats being awkward and I intend to put both HBOS and callcredit in court and have told them so.

Just for the record heres what I sent John McAndrew by e-mail and post,sent one to Sir Dennis Stevenson of the same nature.

 

sparkie

 

For the Personal attention of

Mr John McAndrew

Managing Director of Callcredit Ltd

One Park Lane

Leeds.

West Yorkshire

LS 1EP

 

Dear Mr McAndrew,

 

I write further to you with regard the unlawful default showing on my credit file held by Callcredit.

 

I have received this e-mail from your customer services, and I refer you to the rest of this letter.

 

 

Hi William This message is being sent further to your recent dispute about a record on your credit file being provided to us by HBOS. HBOS has advised that the record in question is correctly recorded and cannot be removed from your credit file. Should you wish to dispute this matter further, we would request that you contact HBOS directly. We trust that this information is of assistance to you. Kind regards Customer Care

 

 

2008-07-31 14:59:18

 

 

 

 

I have requested that you obtain a copy of the fully executed agreement that HBOS must have to lawfully supply the default data to you. I have also made you aware that HBOS will be unable to supply that agreement.

 

I will therefore make no further comment except I intend to take action via the courts against both Callcredit and HBOS, and merely say I am confident I will be successful in that litigation claim

 

Both will be co-defendants in this litigation, I have advised the Chairman’s office of the HBOS of the same fact.

 

CRA’s

It is important to note that by virtue of (a) above it is not enough for a data controller to say that, because the information was obtained from either the data subject or a third party, they had done all that they could reasonably have done to ensure the accuracy of the data at the time. Now data controllers may have to go further and take reasonable steps to ensure the accuracy of the data themselves and mark the data with any objections. The extent to which such steps are necessary will be a matter of fact in each individual case and will depend upon the nature of the data and the consequences of the inaccuracy for the data subject. This approach exceeds the requirements of the Fifth Principle in the 1984 Act.

 

 

Any default record should be accurate. We normally expect a lender to keep records that are necessary to showan 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.

 

Is the lender prepared to take court action if not why not?

 

HBOS do not intend and will not take action against me, because they hold no lawful enforceable agreement.

 

If 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.

 

HBOS by being unable to supply a copy of the fully executed agreement cannot ask the court to enforce it under section 65 of the CCA, they have not applied to do this for reason HBOS are fully aware that any attempt to enforce it would not succeed, section 127 of the CCA would prevent this. I paste here the Law Lords ruling on this issue. Taken from Wilson v First Counties Trust;

 

Quote;

Failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63 section 127(4) precludes the court from making an enforcement order

.In effect, the creditor – by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms – must (in the light of the provisions in sections 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid.

 

A default cannot be registered on a “gift”.

Apologies to finlander for bringing Callcredit onto his Experian thread, I won't post anymore,about this on his thread ...sorry again mate, its just I'm so Pxxxxxd off with all CRA's

sparkie

Edited August 8, 2008 by Sparkie1723

[Sparkie1723]

Your message and replies

 

Just sent this e-mail to call credit about a default on my credit file. Lets see what they make of that

 

Dear Callcredit,

Under section 159 and consumer Credit Regulations, I can see no regulation tat states that a CRA cannot remove data without the consent of the creditor/supplier of that data. This being so when you tell me that you cannot remove it without the consent of HBOS you are actually making a negligent misrepresetative statement under the misrepresentation Act 1967.

 

S2(1) Misrepresentation Act 1967

Negligent Misrepresentation

For negligent misrepresentation the burden of proof rests on the representee to show that they had reasonable grounds for believing it to be true. This can be a heavy burden to discharge. Therefore I again demand that this entry be removed. Yours sincerely sparkie

2008-08-08 15:36:42

 

This is a quick reply don't you think, they normally take 2 days to answere an e-mail complaint

sparkie

 

 

Dear Mr sparkie Thank you for your message. Your comments have been forwarded to John McAndrew for his attention. Kind Regards Customer Care

[tifo]

From the Richard Durkin case, where he got around £116,000 for 1 default by HFC :- RICHARD DURKIN v. DGS RETAIL LIMITED+HFC BANK PLC, 26 March 2008, Sheriff J K Tierney

 

Kapohraror vs Woolwich Building Society (1996) where the claimant was awarded £5,500, the amount being £1,000 for the damage caused by the default and £4,500 being the value of the default. Lord Justice Evans said at page 124 "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."

 

In the above, damage is automatically assumed in every case of a default, therefore no further information from the claimany is required other than the proof of the default existing in the credit files. In todays figure the awarded amount of £1,000 would be around 25% higher than in 1996, according to The Office of National Statistics.

 

In King v British Linen and Co (1897) the loss to credit rating was valued at £100 where no specific damage could be shown. In 2008, this figure is equal to £9,975.

 

In Wilson v United Counties Bank (1919) the award was £7,500 which would translate as over £17,000 with today's price index. The case was similar to the one above.

 

Richard Durkin v DSG Retail and HFC Bank (2008) provides a more recent precedent with regards to the damage suffered as a result of a default and the claimant was awarded £8,000 plus an additional sum of around £108,000 for the loss suffered in not being able to use credit in a normal manner, loss of potential property and interest gains etc. The argument started over a £50 refund from PC World.

 

There's nothing stopping us asking for £10,000 per default by quoting the above precedents.

Edited August 8, 2008 by tifo

[BlueSquirrel]

If one was to pursue a claim for damages from an incorrect default what would be the time limit to do so. The reason I ask was NatWest put an incorrect default on my partner's credit reference and it was two years later following an FOS complaint before they removed it. He got 250 quid for his trouble, with their argument being that he didn't have much of a reputation to defend! (Some truth in this unfortunately but it did stop him having a credit card or a current account for two years.)

 

The problem was, as our financial records were linked, it affected me as well and I was refused a mortgage during that time, which caused a string of events, similar to that detailed in the Durkin case.

 

I did not have the wonderful CAG in those days unfortunately; this incident was around 5 years ago, does the 6 year limit apply, someone told me it is less for damages for defamation. Is this what this would be dealt with under?

 

Hope you don't think this is butting in, I thought the answer to this might be useful to anyone else in a similar position.

[tifo]

I did not have the wonderful CAG in those days unfortunately; this incident was around 5 years ago, does the 6 year limit apply, someone told me it is less for damages for defamation. Is this what this would be dealt with under?

 

The time limit for sueing for Libel is 1 year in England and 3 years in Scotland.

[Sparkie1723]

You would have to take any action under the Data Protection Act, section 13 allows claims for damages, and under the DPA the time limit is 6 Yrs.

 

sparkie

[finlander]

ok...quick reply to Milsy (Good ole Milsy)

 

 

Dear Mr Mills,

Re : Your refs ; xxxxxxxxxxxxxxxxxxxxxxxx

Thank you for your recent letter of the 31 July 2008 and it’s interesting contents.

At this time I am awaiting replies to enquiries made to The Information Commissioners office, the Economic Secretary to the Treasury, The Queens Bench Division of The High Court and The Solicitors Regulation Authority.

Once I have received replies to these letters I shall be responding to your letter in full.

In the meantime I would like to state that as of this day your company continues to defame my an my wifes names and would request that you disist immediately,

Your truly,

I think you can see where we are going with this. I'm not going to post the enquiries I have made of the fine people above as I don't think Experian need to know that yet until they have dug the hole a little deeper.

'Oh what a tangled web we weave......' as the saying goes

[BlueSquirrel]

You keep some stranger hours Mr Finlander!

 

Watching with interest. Have done an S.A.R - (Subject Access Request) on Nat West and we will see what this brings to light. I had an issue with Experian refusing to remove an incorrect default for two years, because they said they could only remove it if Natwest said it was wrong.

[car2403]

You would have to take any action under the Data Protection Act, section 13 allows claims for damages, and under the Data Protection Act the time limit is 6 Yrs.

 

sparkie

 

That would be 6 years from the time the cause of action was discovered, not 6 years from the time the damage was incurred, as usual.

[Sparkie1723]

That would be 6 years from the time the cause of action was discovered, not 6 years from the time the damage was incurred, as usual.

 

Hi car2403

This is where laws conflict and contradict themselves. The data protection Act gives the authority for data to be destroyed a creditor ( Defendant )would/could say that they have no records to present a defence as they would claim they had complied with the data protection Act and lawfully destroyed all documents and data and any possible chance of defending any claim..... and submit that they would not get a fair hearing and apply for a strike out of any such related claim, that would entail some very technical points of law.

 

Only my opinion but ..... I think its an argument they would use. Even though we KNOW they don't destroy any data if it's to their advantage.

At least I know it for certain they don't.

 

sparkie

[tifo]

Can we only take action for 'live' defaults on our files or also those that have been removed after 6 years? I ask because many of my defaults have come off now because 6 years was over and at the end of this year i'll have none. That's 0 defaults from about 15 last year. Yet, during the time they were on, they still did their work in destroying my credit files and the consequences from that.

 

Also, can a creditor default me again once the current one is removed after 6 years? All my defaults were from banks and now DCAs 'allegedly' own the accounts. Now that they're removed, i can see DCAs wanting to default again, because there is nothing else they can do.

[Sparkie1723]

HIya tifo

 

I don't think you could take action on a default that has been removed because you would have to prove the damage it did cause you at the time and that would be hard to do I think, and I think they would rely on the SOL timebarr, the judge would say " why didn't you do something about it when it was causing you the damage then???....but if the DCA defaults you again just as you are now building up your credit status, you could claim it as a malicious action made to deliberately cause you damage without taking you to court because they would most probably lose.

 

just my view others may have a diffrenet angle

 

sparkie

[tifo]

Ok, thanks sparkie,

 

I've had compensation on 3 defaults through the FOS and this was after they were removed by the bank as they were on by mistake. I complained that they had caused me damage when they were on.

 

I was thinking about the 6 year from discovery to bring any action and of course within this time some defaults are going to come off.

[Sparkie1723]

Ok, thanks sparkie,

 

I've had compensation on 3 defaults through the FOS and this was after they were removed by the bank as they were on by mistake. I complained that they had caused me damage when they were on.

 

I was thinking about the 6 year from discovery to bring any action and of course within this time some defaults are going to come off.

 

 

tifo

If they are still on you can claim it's just that you can't if they have gone any that are still there and are incorrect you have the right to claim compensation

 

sparkie

[knoxvillain]

I've had compensation on 3 defaults through the FOS and this was after they were removed by the bank as they were on by mistake. I complained that they had caused me damage when they were on.

 

I had a default removed by HBOS as they failed to issue a default notice, is it worthwhile complaining to FOS to seek compen?