EXPERIAN... The final battle commences

[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

[car2403]

I have nothing to lose...

 

I'm hoping I'm wrong here, but you seem very, very disillusioned, I have to say.

 

I'm with you all the way, in that you have a very good argument.

 

There is an alternative, though...

 

They don't cave in, as you say, and you do get to Court. Because of the interest you've generated on this thread, that is more likely now. Also because of this interest is the Judge less likely to actually deal with your case and refer it to the High Court. Along with a High Court referral, are you going to face thousands of pounds worth of costs. Do you think this will bother them? I don't!

 

"Attacking the head of the snake is one thing, but just be sure you've covered yourself with a shield against the sting in the tail, should it rear around and come at you unexpectedly"

 

car2403, "EXPERIAN... The final battle commences" post #85

 

[car2403]

The above Quote, is like somebody throwing a bucket of cold water over a person!

 

Sometimes a cold bucket of water is what is needed to get people back on track. It's easy to misunderstand the legal arguments behind what is posted and get so close to the cause that you miss the bigger picture.

 

For example;

 

The CRA's have been processing consumers subject data now for many years, they have no legal obligation so do so; it is simply just standard industry practice...It is NOT 'The Law'. It all started way back in the days of the mail order catalogues.

 

I'm not sure what you mean by "legal obligation"? They don't need a legal obligation to process your data - you allow, by contractual relationship with lenders, the CRA to process your data explicitly. In fact, they don't need an obligation to share your data, as they claim they have a legitimate interest in the processing. (Sharing it for credit referencing purposes)

 

I for one am enraged over the incorrect, unjustified and unwarranted data that they process in relation to me. THE CRA's have no legal right to process such data and even if they did, the CRA's apparently do not even bother to check as to whether the data is correct, which is a breach of The Princoples, in itself.

 

Enough is enough, time to fight back for 'Our Legal Rights'.

 

AC

 

If it is incorrect, unjustified and unwarranted, then you have a right to have that corrected - the Data Protection Act.

 

They don't need a legal right to process, as I've mentioned above. I agree that they don't take their duty to check data accuracy to the required standard. The problem being that obstacles are put in our way when we challenge them on it.

 

angry_cat whilst car2403's comments may seem to you as throwing cold water over the argument, it may be a wise idea to listen to his words. Whilst not trying to blow smoke up his tailpipe I can catagorically say that his advice is very often trustworthy and a reflection of personal experience in these matters.

 

I too wish you the best of success in your endeavours.

 

Thanks, yhs.

 

The whole point of this site is to share experience and to learn from one another. Most of this is about personal opinion, so there isn't a right or wrong - only told and untold opinion.

 

IMHO, the OP needs to understand what they are taking one. In sharing my opinion, I'm hoping the OP will be better informed and won't be so disappointed as I have been in the past. Here's just one example;

 

http://www.consumeractiongroup.co.uk/forum/telecoms-mobile-fixed/111666-car2403-o2-wescot-dca.html

 

I believe it is wise to listen to the words of car2403's words. However,I also am of the opinion that, 'Consumers have to stand up for their Rights'.

 

AC

 

Too true, AC - couldn't agree more.

 

We do, though, need to remain focussed on those fights that we can win.

 

As I said earlier in the thread, this is one I'll watch closely...

[car2403]

The Freedom of Information Act only applies to Public bodies - the CRA is a private company, so it doesn't apply to them.

[car2403]

I read all 10 odd pages of car2403's battle with O2 and so can fully understand his cautionary advice to you. However, as always all CAG members are here to give their support. In light of what you are attempting to do, I think it might help if you could get the "big guns" at CAG involved at this early stageby Pm'ing a mod perhaps. That way your thread can be monitored. From what I surmised after reading car2403's post, is that if he/she (sorry no offence intended), had perhaps brought his/her case to the attention of the more experienced CAG members, i.e those with the legal and technical knowhow, there are certain arguments that he/she would not have pursued. Car2403 please correct me if I am wrong.

 

I can't correct you deedee, because you are spot on. Off my O2 thread and off-CAG, my battle with O2 continues unabaited. This wouldn't have been necessary if I'd had a greater amount of detailed support at the beginning, when it mattered. In fact, it wasn't until I spoke with those "big guns" at CAG that my whole claim against O2 became so much more clearer to me and only then could I "see the wood for the trees".

 

This is the benefit of CAG; we share experience and bring those threads to the attention of those that can help the most. Remember that the CAG Admin team can't view every thread, but the site team is backing them up, so if you want some in-depth help, either on- or off-thread, use the "report post" links on the left of each post to bring the thread to the attention of the site team to get the ball rolling.

 

The path we're on with this one, has many rocky pitfalls and split-forks in it that can send us in the wrong direction, should we take a wrong turn - use the well beaten tracks of those that gone before you, learning from those that have fallen foul, to make sure you don't befall the same fate.

 

Christopher Collumbus didn't discover new Land alone - it was he plus the team behind him, that helped him plan and deliver the journey, that has made him famous. Without that team of people behind him, who would Christopher Collumbus be?

 

Use CAG to your advantage and share, share and share the journey with others - we're all pointing due-North, but some will take longer to reach it unless we guide them to their destination.

 

Now that I've posted my "most profound post of the day", I'm off for a brew and a tissue to wipe away the tear in my eye...

 

[car2403]

Wierd, according to Credit Expert (experian):

 

You wa?

 

That's a turn around isn't it?

 

Now, all they need to do is start bleeding doing it!

[car2403]

Who decides the data is accurate

 

A Court, IMHO.

[car2403]

Anyone (besides me) who intends to take any CRA on ...I suggest you contain and word in your LBA to them, something along the lines of....

 

In this action you will be required to produce to the court the irrefutable evidence that the information you have passed on to third parties who have viewed my credit file, that infers/insinuates that I am a Defaulter on agreements and that it is a warning to others that I am to be avoided in the making of further similar agreements/credit facilities as I am proven to be unreliable and of doubtful character and that my financial credibility is highly questionable and I that should be avoided./shunned is in fact both accurate and true.

It will not be accepted by the Court to merely say you relied on the supplier of the information that it was correct, The Data Protection Act may allow some discrepancy but The Libel/Defamation Laws will not.

That excuse is no defence under theses Acts.

You can add to it to strengthen it to suit your own case.

 

sparkie

 

Remember, though, that a dafamation claim will not be dealt with in the County Court.

[car2403]

Are there really 'no win, no fee' solicitors who might take our cases on with the CRAs, especially if there are a lot of us with individual claims or a class action, or on an individual basis?

 

The Bars Pro Bono Unit probably would.

[car2403]

court is the only thing that will put pay to these money grabbing people out there.

 

I would agree with you, if it wasn't for this post; (post #74 on that thread)

 

http://www.consumeractiongroup.co.uk/forum/other-stores/110148-car2403-ge-capial-bank-4.html#post1630203

 

Sadly, it all comes down to which Judge you get on the day.

 

[car2403]

car2403,

 

Looking at your thread above it would appear that your agreement was improperly executed and not, as some of us are getting, completely unenforceable (the standard application form). Is that correct? It appears it was laid out correctly but just not signed and dated etc. Trying to work out the judges logic.

 

Yes.

 

The claim was for default removal due to the charges applied, but the Judge wasn't interested in any prejudice I suffered due to being unlawfully Defaulted under an improperly executed agreement, which he should have been, considering he looked at s.65/s.127 and considered that GE would have got a Court Order if they requested one, even though they didn't bother their arse asking for it.

 

You're right in that it would have been a totally different outcome if it was irredemably unenforceable under s.127(3), but I was pointing out the "Judge lottery" that goes one, rather than the actual outcome yesterday. For instance, in the previous Case Management Conference meeting with a different Judge, he had indicated that GE should be "urged to discuss a without prejudice settlement", prior to the final hearing yesterday, as he believed the Default Notice to be faulty and accepted my argument it was invalid, therefore making the Default entry on the CRA file unlawful under the DPA. (Note, not the default entries - such as late payment markers - which probably were factual)

 

As you say, this Judge's reasoning is a little difficult to swallow - mainly because he didn't share his entire reasoning in the trial, probably to prevent me even considering appealing against his decision!

[car2403]

Have you got a written record of his judgement you could post?

 

No - it's a small claim anyway, so I'm unlikely to get the final Judgment in written format.

 

Even if I did, it wouldn't be binding on any other cases, because it was a small claim, sadly.

 

Interested to see what you have, though - there is an appeal process, which I might consider just to push the issue, if need be.

[car2403]

Interesting, finlander.

 

In Court, I posed the question to GE why they hadn't sought enforcement via the Court, but had, instead, Defaulted my credit file and passed the debt to a DCA to collect instead. There was no answer fortcoming. I went on to get the Judge to adjudicate on the Default Notice being a method of enforcement, as, if it was, the enforcement couldn't have happened (Default Notice being issued) as there was no Court Order.

 

As it goes, the Solicitor was very interested in ignoring the enforceability or otherwise of the agreement - but the Judge was having none of it. "To consider car2403's argument, Mr Ross" he said, "we need to look at the enforceability of the agreement, whether you like it or not, I'm afraid, so that is what I intend to do".

 

Once the rest (which you've outlined nicely) was dealt with, then I asked the Judge to consider the impact of the Default (damages caused) given GE has never sought enforcement - I did that using the ICO's Techincal Guidance on the application of the DPA and the recording of Defaults. I'd lost the Judge at this point, ("Mr car2403, we've spent far too long on this case already", he said, despite this being 2 hours in to a 3 hour case slot on the listing!) so he just past Judgment regardless.

 

Your points are interesting in my case, but not binding on others or the CRA's.

 

Incidentally, I fully intend to challenge the CRA's retention policies, once I get over this result. I also intend to watch the OFT TC outcome with interest, as if that states the charges could be unfair and the Courts can decide that, I'll be back on to GE/Court/CRA to have this removed.

[car2403]

Also, (as I indicated to my Judge, but he was having none of it - again!) if they have an application form that is unenforceable and Default you because of it, but never take you to Court, surely that's an abuse of their Consumer Credit License? Any company doing this should be reported to the OFT to be investigated, as they may be unfit to hold their license. Presumably, this argument can be used with the CRA, where they continue to share info provided by that creditor, in these circumstances, too!

[car2403]

It's almost as bad as a CCJ and should be stopped. The default should be removed after 6 months if no court action is taken IMO...

 

I think this is where finlander is going with his view though, supported by you and I.

 

If a Default is recorded, which is a precursor to legal action and that legal action never comes, is it possible to argue that the Default itself becomes excessive after a certain period of time? Probably, IMHO, but we'll have a hell of a battle on our hands trying to convince the ICO that it should be less than 6 years.

 

Where does this 6 year marlarkey come from anyway? Is it based on the Limitation Act, which would limit their legal right to take action after 6 years from filling the Default with the CRA, or not?

 

There must be more we - and CAG - can do to fight this issue, especially with the OFT TC looking like taking years to resolve. In the meantime, so many people are being refused access to justice.

[car2403]

Just to let everyone know..Millsy has replied..his letter is long, complicated and as far as I can see completelt deviod of any arguement that will stand up in a court. I will draft a reply and send it on to him in the next few days. watch this space;)

 

Oh, don't be a tease - post it up, can you?

 

[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.

[car2403]

I can't see that quote in that document, finlander?

[car2403]

I sure there's a book on recruiting chickens, to make phone calls using a script, that some DCA's seem to think is more effective.

 

Maybe we should all pitch in and buy some copies of this material for them, perhaps?

[car2403]

Excellent, finlander!

 

Will the Real Slim Shady (or the real "Mr Smith") please stand up?! You deserve a pat on the back for that one!

 

If only I was so elegant in my responses, just as Phuk has been...

 

By the way, I've heard that persons mother got re-married to a "Mr Off", but Phuk chose to keep that name, rather than going double-barreled - you can imagine that surname now, can't you... "Off-Mann".

[car2403]

thanks mate

 

Also try this;

 

Technical guidance notes - Information Commissioner's Office (ICO)

[car2403]

Thanks Car2403

 

is this implied as gudance only or is it law?

 

It's advice given to companies on how to comply with the Act.

 

It isn't binding in a Court, but it is persuasive and there would have to be a very good argument against imposing it.

[car2403]

Having fun and games with Experian myself, it appears that a creditor has no application and is relying on a recent copy of its terms & conditions (it purports to be the executed agreement) which I have not signed to enforece.

 

So there is no data protection act declaration in existence, Experians comments are that because the account was operated within T&Cs for a period of 30+ months I must have agreed at some ponit.

 

Said creditor continues to process data despite an s.10 notice being put in place to remove any perceived authorisation.

 

Call Credit have been good and said they would suppress any entries from this company against my credit file if no evidence was forthcoming within a month, Experian are trying to justify their position, and no reply from Equifax.

 

Me thinks this one will be going to court.

 

Ah ha...

 

No Court necessary, in that case - a complaint to the FSO/I.C.O. regarding a completely unexecuted credit agreement and missing DPA notice of consent should result in the info been removed from your CRA file. Check near the end of this thread for the letters from the I.C.O. showing their view on unexecuted agreements;

 

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

[car2403]

Looks like Mr Mills is aware of this Topic guys

 

His last and final response received today is in PDF format, which he normally does anyway. But this time. Has put restrictions on the PDF document stopping me from copping its contents or printing it at all.

 

 

Just take screenshots - "Prt Sc" button above your insert key on your keyboard.

[car2403]

update....

 

strange letter back from millsy... still wont answer my question regarding registering defaults without a cca and if this is company policy...just keeps stating he has already answered that when he hasn't. I smell panic....... oh good........

 

Maybe Millsy should read this, from the Information Commissioners Office;

 

Recording defaults in respect of improperly executed credit agreements;

 

The office line, following the House of Lords decision in Wilson in 2003, has been that - where an agreement was not signed by the debtor or did not include the prescribed terms, the agreement is irredeemably unenforceable and details of the agreement should not be recorded with the credit reference agencies. This line applies only to cases where the improperly executed agreement is "irredemably unenforceable" as a result of the effect of section 127(3) CCA 1974. Where the agreement could be made enforceable on order of the Court the findings of the Court of Appeal in the case of R v Modupe should form the basis of our policy with regard to the recording of liabilities under such agreements with the credit reference agencies

 

Here's a link to the actual letter sent to a complainant;

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/111211-defaults-background-removal-methods-2.html#post1361298

 

(Bear in mind that this letter actually misinterprets s.15 CCA 2006, stating that s.127(3) was repealed, when it was only in fact repealed after the enactment of the 2006 Act)

Edited September 27, 2008 by car2403