EXPERIAN... The final battle commences

[pt2537]

Guys, im drafting up a letter to my solicitor regarding Experian

 

Need the Legislation that requires Experian to deal with incorrect info even if there client confirms its correct.

 

Just want to highlight this to the solicitor on Tuesday

 

S159 CCA1974 also deals with this

 

Consumer Credit Act 1974 (c. 39) - Statute Law Database

[madpriest]

It's 0302 in the morning and I've finally got to the end of the thread.

 

The originator has gone quiet - does that mean 'game on'

 

I'm also taking the defamation route so lets see what happens.

[madpriest]

Wow

 

I finally got to bed about 3:30am this morning after reading this thread bit by bit throughout the evening. I'm in the first steps in my own default removal.

 

finlander and sparkle. Thank you - both of you - for keeping our eyes firmly fixed on the ball. The enemy will try and get us sidetracked so lets keep focussed.

 

My own understanding is as follows:

 

IF the 'default' marker is false and can be proved to be false, (which I'll come back to...) ..

 

Then we ask that it be removed immediately. Not within 28 days. Immediate. Reason? It's defamatory.

 

The Author of the defamation is the bank or other financial institution.

The Publisher of the defamation is both the bank and the CRA's.

 

The CRA's are claiming innocent dissemination. This is not a valid defence if they have been advised that it is defamatory. See ..

 

Godfrey v Demon Internet Ltd, QBD, [1999] 4 All ER 342, [2000] 3 WLR 1020; [2001] QB 201

 

Finlander is quite correct is going after the CRA's first and Experian is a worthy target.

 

Again --- advise them that the 'default' marker is defamatory, require them to remove immediately (or surpress if they cannot remove ?????)

Check back in 7 days and if still there, LBA, followed by action.

 

This action would need to be using Defamation Act, but there may be scope to add a Section 10 DPA action with it. Get an order under the DPA for its removal and damages under both DPA and Defamation.

 

Now we come to the matter of Proof - proving that the DEFAULT marker is false.

 

My understanding of the debate on these threads is that if they cannot provide a copy of the CCA or Notice of Default then they cannot prove the debt. (Someone needs to advise me whether this applies to current accounts with overdraft facilities..please)

 

My own default was as a result of going over the overdraft limit and not paying it back at first. It was due mostly as a result of bank charges but I did eventually 'satisfy' the debt. A few years later I got all my money back plus delicious compound commercial interest.

 

However the default marker remains. The argument could be that at the time of placing the default it was true. (And the Author - The Bank - have qualified priviledge in law in that they thought it was true). It argument continues that the default marker cannot be said to be untrue until the courts have finally decided.

 

I realise, from this thread, that it is believed that the purpose of the 'default' was as a precursor to court action. I would need to study the law on that a little more.

 

Of more importance is how we prove that the CRA is continuing to 'publish' after being advised that the marker is defamatory. Maybe, after 7 days, I need to apply for another credit card. Get the credit card company to enquire of Experian. Experian publishes and bang ........ gotcha.

 

This however would hurt as it would be the first time that I'm hoping to be turned down for a credit card.

 

Are there any other ways in which we can get them to 'publish' ??

 

There then remains the question of damages. I can show what they call 'Special' damages (which are in fact provable losses) in that I can show that I had to pay more for my credit through secondary lenders than I would have, if my credit rating had been ok.

 

There are also 'general' damages which are the defamation part.

 

There is a view the £1000 is about right and I reckon this is what they would offer in any out of court settlement. Not enough IMHO.

 

Others look to toe Scottish case and see over £100,000 but this misreads the damages. most of that is made up of actual quantifiable losses.

 

My own read would be that damages in our cases would be in the £5000 to £10000 marker with £8000 being the 'norm'. Could be a little more now.

 

Sparkle - I'm still looking for a step-by-step county court action list.

 

Lastly but not least - a little plea for caution. i've found the CAG site extremely useful. However it seems at times that people get hold of a little piece of law and think that this is going to blow them away.

 

Likewise the enemy will try and get us immersed in treacle with their own arguments. Stick to law. Examine their comments on law and on their quoted cases. We need to have an answer to every authority that they quote.

 

The key to these bits of law is that they don't help our case until a judge says they do.

 

Walter Truett Anderson tells the joke of three umpires having a beer after a baseball game. One says "There's balls and there's strikes and I call 'em the way they are". Another says "There's balls and there's strikes and I call 'em the way I see 'em". The Third says "There's balls and there's strikes and they aint NOTHIN' until I call em".

 

Such, I suggest are all our legal arguments. They ain't nothin' until a judge says so.

 

Blessings

[finlander]

hi folks,

 

sorry i went quiet but was in holiday with Mrs Finlander........ anyway...the story so far...

 

Milssy has written back to my last letter...it was slightly different to the one posted on here as i changed it just afterwards... you can see why when you read it here.......

 

Dear Mr Mills,

Re : Your refs ; xxxxxxxxxxxxxxxxxxxx

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 can you please write back to confirm the following points stated in your letter.

• That defamation actions cannot be heard in the County court?
  
• That there are no pre-action protocols relating to defamation actions and therefore your company has no intention of abiding by these ‘alledged’ protocols?
  
• that Experian does not require a correctly executed Consumer Credit Act agreement in order for one of it’s clients to register a default notice under The Consumer Credit act?
  
• That all defaults registered on my and my wifes account are registered in compliance with The Consumer Credit Act?
  

I would also 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,

ok so what did millsy (good old millsy) write back.

well interestingly he wrote back and said 'actions for defamation cannot be pursued in county court' , end eclosed some county court rules, and that he didn't understand the question about pre-trial protocls. full stop the end no more.

however what is always interesting is what is not said as well as what is.

Now who can guess which questions he didn't answer from that letter?

[finlander]

mmmm...

[finlander]

thats right my little ones. He didn't feel able to answer the direct question about the CCa and agreements. why do we think that is?

 

I think I have a clue.......

[finlander]

still waiting for the replies to my letters.... then it's one more to millsy...then LBA... then court.....their choice not mine;)

[itsamomentintime]

still waiting for the replies to my letters.... then it's one more to millsy...then LBA... then court.....their choice not mine;)

 

 

cant wait!

[Falkirk1298]

Subbing with considerable interest!

[madpriest]

I can't see how to subscribe?

[pt2537]

you are already subscribed to the thread if you post upon it and the settings in your User CP are set so that it automatically subscribes you to the thread

 

if you recieved an email message telling you someone had replied to the thread, then you are subscribed;)

[Michael Browne]

I can't see how to subscribe?

Top of the thread - Thread Tools - subscribe to this thread

 

Of course, now you have posted on this thread, you are subscribed to it (unless you have disabled it in your User CP)

[UK26]

MR Paul Lever C/o Experian has gone very quite now

He always replied to my emails within a couple of hours until the last one which I provided all the proof to backup my claims about incorrect data and happened to CC the ICO in on the email providing the evidence to paul

 

Now been 3 days and not a reply or anything

[davefirewalker]

MR Paul Lever C/o Experian has gone very quite now

He always replied to my emails within a couple of hours until the last one which I provided all the proof to backup my claims about incorrect data and happened to CC the Information Commissioners Office in on the email providing the evidence to paul

 

Now been 3 days and not a reply or anything

 

Send it again ....

 

and ask if he got the first one.....it might have got lost/deleted by accident (yeah right)

 

keep the pressure up

 

Dave

[UK26]

emails now sent

 

-----Original Message-----

From: Dave*******[mailto:dave@**********]

Sent: 04 September 2008 09:09

To: '[email protected]'

Cc: '[email protected]'

Subject: FW: Reference: 42*****6 --- CaqQuest Debt Recovery Limited - Formal Notice of Complaint

instructed the below solicitors to also act on this matter

Waller, Needham & Green Solicitors

Bretton Centre,

Bretton,

Peterborough,

Cambridgeshire

PE3 8DS

-----Original Message-----

From: **********[mailto:dave*********]

Sent: 04 September 2008 09:02

To: '[email protected]'

Cc: '[email protected]'

Subject: FW: Reference: 42**** --- CaqQuest Debt Recovery Limited - Formal Notice of Complaint

Hi,

Just in case, you did not get my last email, I hereby forward yet another copy for your prompt attention.

Regards

*******

-----Original Message-----

From: Dave********* [mailto:*************]

Sent: 31 August 2008 11:17

To: 'Lever, Paul'

Cc: '[email protected]'

Subject: Reference: 423***** --- CaqQuest Debt Recovery Limited

Formal Notice of Complaint

- All parties to acknowledge -

Dear MR Paul Lever C/o of Experian

CC: Information Commissioner’s Office

Re: Experian Limited maintaining incorrect data

[UK26]

[update] from Experian

 

Our Ref: PL/423***

 

4 September 2008

 

Dear Mr UK26

 

Thank you for your e-mails received on 30 August 2008, 31 August 2008 and 4 September 2008.

 

As you have advised that you have instructed your solicitors, Waller, Needham & Green Solicitors, to act on this matter, we will provide them with a substantive reply in relation to all the points raised once in receipt of their correspondence.

 

I have alerted our legal department that we should receive something from your legal representatives very shortly.

 

You might wish to advise your solicitors to direct their correspondence to my colleague within our legal department whose details are listed below:

 

Andrew Mills

Head of Intellectual Property & Litigation Solicitor & European Trademark Attorney Experian | Landmark House | Experian Way | Nottingham | NG80 1ZZ | United Kingdom |

Fax: +44(0)115 828 6342 |

E-mail: [email protected]

 

In the meantime, I am raising a query with CapQuest in relation the defaulted account that they have recorded on your credit report.

I will also raise a query with Lloyds TSB in relation to the account recorded with your name as "Mr *********** to ask them to confirm the correct name details for this account.

 

Our standard 'Notice of Dispute' statement remains attached to both of these entries, as it has since we first queried these accounts on your behalf.

 

With regards to the accounts with Lowell Portfolio I Ltd and Hillesden Securities, we have previously queried these entries on your behalf and both companies confirm that the details are accurate.

 

We advised you of this in our letters dated 20 March 2008 and 29 April 2008 respectively.

 

I have already fully addressed the matter concerning the account with HFO Services Ltd.

 

I have processed an amendment to remove the financial association recorded on your credit report in the name of your late father. This amendment will take effect within the next seven days.

 

Finally, with regards to address link information, I will remove all address links over 6 years old from your report where there is no financial information recorded in your name and date of birth at those addresses.

 

Please note that we have consulted with the Information Commissioner's Office and they do permit us to retain address link data for over 6 years if the linked address contains information that is still relevant to your credit history.

 

For example, even though an address link might be over 6 years old there could still be account data recorded at the address that has yet to reach 6 years from the date of default or settlement.

 

Having looked into this matter, there is no financial information recorded in your name and date of birth at the addresses of 35, The Walk, Hullbridge, Hockley, SS5 6LW or 24, Springvale Mobile Homes, Sutton Road, Levrington, Wisbech, PE13 5DS.

 

I will therefore delete the address links to these addresses that are over 6 years old and these amendments will take effect in the next seven days.

 

I will contact you again once in receipt of replies from CapQuest and Lloyds TSB.

 

Kind regards

Paul Lever

Consumer Compliance Manager

Directors' Office

[finlander]

you all remember that millsy quite cleary said that..and i quote ' the county court does not have jurisdiction to hear defamation cases' and then he refered me to part 7 of the civil procedure rules... as so....

 

PART 7 - HOW TO START PROCEEDINGS – THE CLAIM FORM

 

very interestin ... then he says that this is all confirmed by the county courts act 1984... like so....

 

 

 

Part II Jurisdiction and Transfer of Proceedings

 

Actions of contract and tort

 

15 General jurisdiction in actions of contract and tort

 

(1)Subject to subsection (2), a county court shall have jurisdiction to hear and determine any action founded on contract or tort F1 . . ..

(2)A county court shall not, except as in this Act provided, have jurisdiction to hear and determine—

F2(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)any action in which the title to F3 . . . any toll, fair, market or franchise is in question; or

©any action for libel of slander.

F4(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Annotations:

 

Amendments (Textual)

 

F1Words in s. 15(1) repealed by S.I. 1991/724, art. 2(8), Schedule PartI

F2S. 15(2)(a) repealed by S.I. 1991/724, art. 2(8), Schedule PartI

F3Words in s. 15(2)(b) repealed by S.I. 1991/724, art. 2(8), Schedule PartI

F4S. 15(3) repealed by S.I. 1991/724, art. 2(8), Schedule PartI

Modifications etc. (not altering text)

 

C1S. 15 excluded by Legal Aid Act 1988 (c. 34, SIF 77:1), s. 39(4)

 

S. 15 extended by S.I. 1991/724, art. 2(1)(l)

 

Now notice the f2 etc.... says repealed...when you enquire deeper it says repealed by this....

Courts and Legal Services Act 1990.

 

 

and that is here....

Courts and Legal Services Act 1990 (c. 41)

 

the most relevent part is....

 

Transfer of proceedings between courts

(1) The following section shall be substituted for section 40 of the [1984 c. 28.] County Courts Act 1984 (transfer of proceedings to county court)—

“40 Transfer of proceedings to county court

 

(1) Where the High Court is satisfied that any proceedings before it are required by any provision of a kind mentioned in subsection (8) to be in a county court it shall—

(a) order the transfer of the proceedings to a county court; or

(b) if the court is satisfied that the person bringing the proceedings knew, or ought to have known, of that requirement, order that they be struck out.

(2) Subject to any such provision, the High Court may order the transfer of any proceedings before it to a county court.

(3) An order under this section may be made either on the motion of the High Court itself or on the application of any party to the proceedings.

(4) Proceedings transferred under this section shall be transferred to such county court as the High Court considers appropriate, having taken into account the convenience of the parties and that of any other persons likely to be affected and the state of business in the courts concerned.

 

Now would you say that there has been an attempt to mislead me?.... I think so... and I think that is a bit naughty........

But..I knew that was happening anyway.... ... when someone is building their own gallows...don't interupt them....

 

[finlander]

you all remember that millsy quite cleary said that..and i quote ' the county court does not have jurisdiction to hear defamation cases' and then he refered me to part 7 of the civil procedure rules... as so....

 

PART 7 - HOW TO START PROCEEDINGS – THE CLAIM FORM

 

very interestin ... then he says that this is all confirmed by the county courts act 1984... like so....

 

 

 

Part II Jurisdiction and Transfer of Proceedings

 

Actions of contract and tort

 

15 General jurisdiction in actions of contract and tort

 

(1)Subject to subsection (2), a county court shall have jurisdiction to hear and determine any action founded on contract or tort F1 . . ..

(2)A county court shall not, except as in this Act provided, have jurisdiction to hear and determine—

F2(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)any action in which the title to F3 . . . any toll, fair, market or franchise is in question; or

©any action for libel of slander.

F4(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Annotations:

 

Amendments (Textual)

 

F1Words in s. 15(1) repealed by S.I. 1991/724, art. 2(8), Schedule PartI

F2S. 15(2)(a) repealed by S.I. 1991/724, art. 2(8), Schedule PartI

F3Words in s. 15(2)(b) repealed by S.I. 1991/724, art. 2(8), Schedule PartI

F4S. 15(3) repealed by S.I. 1991/724, art. 2(8), Schedule PartI

Modifications etc. (not altering text)

 

C1S. 15 excluded by Legal Aid Act 1988 (c. 34, SIF 77:1), s. 39(4)

 

S. 15 extended by S.I. 1991/724, art. 2(1)(l)

 

Now notice the f2 etc.... says repealed...when you enquire deeper it says repealed by this....

Courts and Legal Services Act 1990.

 

 

and that is here....

Courts and Legal Services Act 1990 (c. 41)

 

the most relevent part is....

 

Transfer of proceedings between courts

(1) The following section shall be substituted for section 40 of the [1984 c. 28.] County Courts Act 1984 (transfer of proceedings to county court)—

“40 Transfer of proceedings to county court

 

(1) Where the High Court is satisfied that any proceedings before it are required by any provision of a kind mentioned in subsection (8) to be in a county court it shall—

(a) order the transfer of the proceedings to a county court; or

(b) if the court is satisfied that the person bringing the proceedings knew, or ought to have known, of that requirement, order that they be struck out.

(2) Subject to any such provision, the High Court may order the transfer of any proceedings before it to a county court.

(3) An order under this section may be made either on the motion of the High Court itself or on the application of any party to the proceedings.

(4) Proceedings transferred under this section shall be transferred to such county court as the High Court considers appropriate, having taken into account the convenience of the parties and that of any other persons likely to be affected and the state of business in the courts concerned.

 

Now would you say that there has been an attempt to mislead me?.... I think so... and I think that is a bit naughty........

But..I knew that was happening anyway.... ... when someone is building their own gallows...don't interupt them....

 

[finlander]

ok..as millsy didn't answer my questions.... attempt no 2...

 

Dear Mr Mills,

Re : Your refs ;XXXXXXXXXXXXXXXXXXXXXXX

Thank you for your recent letter of the 27th August 2008 and it’s interesting contents.

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

I hope you will appreciate that once these replies are with me I will be contacting you again to discuss the points you have raised in your last two letters.

I have noted your comments regarding the jurisdiction of the High Court and the County Court. I must say that as a qualified solicitor I am mystified as to why you have quoted County Courts Act 1984 when this was repealed by the Courts and Legal Services Act 1990.

However we will leave that discussion until my reply from The Queens Bench Division is received.

What concerns me more is that you have not answered two of the questions I put to you regarding the Consumer Credit Act and it’s implications.

I will again repeat these questions and ask for an unequivocal answer to both if I could.

Is it true that;

• Experian does not require a enforcable Consumer Credit Act agreement in order for one of it’s clients to register a default notice under The Consumer Credit act?
  
• That all defaults registered on my and my wifes account are registered in compliance with The Consumer Credit Act?
  

I cannot understand what would be the difficulty in answering these simple questions. It cannot be a matter of ‘company confidentiality’ but a simple matter of adminstration. These questions have not, as you have stated, been answered in your previous correspondence so I would appreciate you doing so now.

Can I clarify. I do not want a rambling statement about ‘previous payment history being evidence of an account’ and would ask that you simply limit yourself to answering the questions above.

If you refuse to answer these question I would like a detailed explanation of why.

I look forward to hearing from you soon.

I would also 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,

[UK26]

Right Guys, the fun is starting with me now

 

sent over all evidance to Experian to show the default is incorrect, they refused to delete and wanted to contact CaqQuest to check to see if the info is correct.

 

Sent, a copy of a letter sent to CaqQuest from my Solicitor to Experian and ICO

 

You can find this Solicitor letter over at http://www.consumeractiongroup.co.uk/forum/show-post/post-1696951.html

 

had a reply from Experian today saying

 

 

5 September 2008

 

Dear Mr B******

 

Thank you for your e-mail received earlier today.

I appreciate you keeping us informed of your solicitor's correspondence with CapQuest in relation to the disputed defaulted account recorded on your credit report.

 

As I advised yesterday, I have raised a query with CapQuest and passed on your comments as to why you believe this entry should not be recorded on your credit report. The account has a 'Notice of Dispute' marker recorded against it and will continue to do so whilst this matter is being investigated by CapQuest.

 

By taking these steps we are complying with your rights under Section 159 of the Consumer Credit Act so therefore we await a reply from CapQuest before taking any further action.

 

We have previously informed you on several occasions that we do not amend or delete account information without authorisation to do so from the company who provided the data to us.

 

Kind regards

 

Paul Lever

Consumer Compliance Manager

Directors' Office

 

 

So in response to this i sent

 

 

Paul

Thanks for your prompt reply.

What will happen then if CaqQuest continue to say the information is correct, despite all the evidence I have provided you with?

You state that you "Quote" 'We have previously informed you on several occasions that we do not amend or delete account information without authorisation to do so from the company who provided the data to us'

Right, so when CaqQuest continue to breach all the regulations by not giving authorization to amend / delete

In addition, as result, you continue to publish incorrect information, are you then liable for prosecution, my understanding of the regulations is you are in breach of the data protection act.

As the Information Commissioner's Office have been included in the correspondence between Experian and I. I require a full response within 28 Days to clarify the Information Commissioner's

Office opinion on this matter, I shall refer this matter after 28 days to the relevant Ministers of parliament for there comments in this case.

Comments from my solicitor confirmed, I have evidence to push this case to the high courts for breach of regulations and abuse of process.

This will now be my last email, and await your reply from CaqQuest,

 

 

Can't wait to see his response

[Hullabaloo27]

Subbing with interest. Good luck to all.

[BlueSquirrel]

Perhaps he should have a look at this simple guide

Civil justice : Directgov - Crime, justice and the law

which states

There are 228 county courts in England and Wales, handling claims in contract and in tort (179 of these also deal with family issues). Issues ranging from defamation to divorce are handled by county courts and High Courts.

[UK26]

right, ive had a reply to my last email in post number 620

 

Dear Mr *********

Thank you for your e-mail received today.

 

If CapQuest confirm that the account details are correct then the defaulted account will remain on your report.

 

If you continue to dispute the appearance of this information after it has been confirmed to be accurate you will then have to pursue this directly with CapQuest, contact the appropriate regulators or by making a legal claim against CapQuest.

 

We are unable to arbitrate in a dispute between an individual and a company who has recorded information on the individual's credit report aside from querying the information to confirm whether the details are accurate.

 

I do not believe that we will be liable for prosecution if we continue to display information on a credit report when the supplying company has confirmed it to be accurate.

 

We have received several similar court claims and have been successful in having these struck out, as the cases were deemed to have no legal merit with regards to a claim against Experian.

 

This is because, in each case, we have been able to demonstrate that we have complied with the relevant legislation at all times. Consequently, the claimant has been left to pursue their claim directly against the company with whom they have a dispute.

 

I also believe that the action we take is compliant with the Data Protection Act. This process has been in place for many years and the Information Commissioner's Office is fully aware of the steps that we take when the accuracy of information is disputed.

 

I am sure that if the Information Commissioner's Office considered our practices to be non-compliant that they would have raised their concerns with us.

 

I will write to you again once CapQuest reply to the query that I raised with them yesterday.

 

Kind regards

Paul Lever

Consumer Compliance Manager

Directors' Office

 

[Sparkie1723]

Of course they can try to hide behind the Data Protection Act ....but they cannot hide behind the Libel Act and now what they have to defeat is the New UCPR's

 

Quote from part of the UCPR’s.

The Regulations state that a misleading action or misleading omission on the part of a ‘trader’ in relation to ‘products’ will amount to an “unfair commercial practice”.

A “trader” is a natural or legal person acting in the course of his trade, business, craft or profession.

A “consumer” is not a natural or legal person acting in the course of his trade, business, craft or profession.

“Products” includes goods and services, rights and obligations and range from simple products such as an item of food to the complex services involved in selling property.

 

 

A commercial practice (includes acts, omissions, a course of conduct, representations or commercial communications by a trader promoting, selling or supplying a product to a consumer) becomes a misleading action, and therefore a criminal offence, if it:

• "contains false information and is therefore untruthful […] or if it or its overall presentation in any way deceives or is likely to deceive the typical consumer […], even if the information is factually correct […] or even if it is corrected after the event.
  

This includes CRA's they have not been challenged with these yet.They sell you your credit file and if itcontains false incorrect or wrong data and info, then they will fall foulf of the regs

 

sparkie

[UK26]

hehe, i think i have an excellent case here to really put to the limits.

I have all the proof, the default is incorrect, ive made them all aware of this as did my solicitor oh and the ICO

Very near now, issuing court action so would be good to get a N1 draft sorted ready to send off.

I know full well, CapQuest are going to confirm, the info is correct, and Experian will then refuse to remove, as indicated in post 623

this is getting very very Interesting now, i bet CaqQuest will keep me waiting the full 28 days before they confirm its correct or not