Sparkie v Experian & BOS

[Sparkie1723]

I've just started to give Experian something to think about over the BOS searching my credit file by fraud.

I'll post this from the start of my complaint to the ICO

 

 

1st PROBLEM COMPLAINT; In June 2008 I found that the BOS had entered a default on my credit file with the Credit Reference Agency Callcredit Ltd. As I knew that this default was unlawfull, I demanded that Callcredit remove it.

Callcredit refused to remove it and said that BOS had told them the entry was correct and to keep it on my file. I wrote direct to the Managing director of Callcredit to complain that his company was in breach of the Data Protection Act and the entry was libellous, and demanded he obtain proof from BOS that the entry was true. Soon after the default was removed. I made both BOS and Callcredit aware that I intended to take action via the courts against them, and wrote to the Chairman of The BOS also advising the same unless they were prepared to offer substantialcompensation for their unlawful actions. ( Doc 1 4 pages) Both to no surprise refused. I fully intend to do so, however, I am aware that is of no concern to the Information Commissioner. Further correspondence was entered into, copies of these are attached and numbered in date order)

 

2nd PROBLEM COMPLAINT; In September 2008 I received a letter from the BOS Card Services Specialised Lending team informing me that an application made by me for a credit card had been declined. ( copy attached) I had not applied for any such facility, and contacted that department to inform them that I believed that this application was fraudulent, and to remove the search made by BOS from my credit file they had made with Experian. They refused outright, to remove it, insisting that they believed that I had actually made the application as on asking me certain questions about me that was on the application, I confirmed them, I made it quite clear to them that although some of the information was without doubt correct, other important information was incorrect.

 

I then asked BOS to carry out an electronic trace on the application as they advised it had been made via the internet at 11:10 am 12th September 2008, and informed them that it would be easy for them to trace the computer ISP address to ascertain where the application came from, they advised me they could not do this. They also informed that they would not comply with my request for a hard copy of this "alleged" application. I then said I would request it under a section 78 request of the Consumer Credit Act, I was again told that they would not supply it under that Act as it was not an actual agreement but an application for credit, therefore not obliged to supply it, I have therefore submitted a subject data access request for it to be supplied.

 

I then contacted Experian and informed them about the situation and requested that they remove the entry, again also they informed me that they could not without investigating the issue with BOS, although under the information I had given them, but assured me that they would make their investigation very thorough.

Under the circumstances I made the BOS and the Chairman quite clear of the following beliefs.

1…I believe that because of my notification of the intent to take action against the Chairman and the Bank as a company in separate actions, that in order to find out any other possible adverse information that may be on my credit file so they could use in defence of any claims for damages against them, a person or persons unknown within the BOS has fraudulently applied for a credit facility in order to have the authority to access the data bank of the CRA Experian.

 

2…I say this because I have discovered in my phone conversations with the BOS that some of the information on the new application is exactly the same information provided by me in 2005.

 

3…That I charge the BOS with fraudulently and unlawfully obtaing information about me which would also contain information about my partner Mrs X Xxxxxx by way of association link on our credit files.

 

I believe the documents I attach will provide sufficient information for the Information Commissioner to take action under his powers under the Act

 

Copies of documents attached to this complaint

 

1…Letter to Chairman of BOS 2…Copy of letter from BOS Specialised Lending Team Cardiff…

3…Letter received in reply to my letter to the Chairman…4 & 5… Copies of letters to the writer of (document 3)and documents referred to in them…6…Copy of the section of my credit file held by Experian showing the Search made by BOS on 12th September 2008….7…Copy of my original application information. THIS DOCUMENT I DO NOT WISH YOU TO PASS ON , I supply this to enable you to compare the new application details which I will send to you when I have received a response to my Subject Data Access Request (SDAR) …8 Copy of my SDAR..

 

 

 

this a copy of an e-mail from Experian

 

Dear Mr sparkie

 

Whilst I am querying this entry on your behalf, I am adding the following 'Notice of Dispute' to your report:

 

"THE CONSUMER HAS DISPUTED THE ACCURACY OF THIS ENTRY AND WE HAVE THEREFORE ASKED THE PROVIDER TO INVESTIGATE IT. GIVEN THAT THIS DATA IS DISPUTED, PLEASE TAKE CARE IF MAKING AN ASSESSMENT OF ANY KIND THAT MAY INCLUDE THIS DATA."

 

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.

 

Yours sincerely

 

Miss Kelly A Smedley

Consumer Service Officer

CreditExpert Membership

 

cc Bank Of Scotland

 

 

 

this is another e-mail from Experian

Our Ref: RXS/43168007/PC

 

Dear Mr Brian

 

Further to our recent correspondence, I have been contacted by HBOS Credit Cards (P1). They have confirmed that the details we hold are accurate and have requested that we retain the information on our database.

 

This entry relates to an application for Unison Credit card underwritten By HBOS ( Halifax). Unfortunately I am unable to amend this information without the authorisation of the company in question.

 

The 'Notice of Dispute' will remain on your report for 28 days. It will then be removed, unless I receive further notification from you:

 

"THE CONSUMER HAS DISPUTED THE ACCURACY OF THIS ENTRY AND WE HAVE THEREFORE ASKED THE PROVIDER TO INVESTIGATE IT. GIVEN THAT THIS DATA IS DISPUTED, PLEASE TAKE CARE IF MAKING AN ASSESSMENT OF ANY KIND THAT MAY INCLUDE THIS DATA."

 

If you have any further queries or wish to discuss this further, may I suggest you contact the company concerned direct at the following address:

 

HBOS Credit Cards: Specialised Lending Team, HCS, P.O. Box 316, Cardiff, CF23 8FN

 

Kind regards

 

Rosa Salamone

Client Queries Administrator

Client Queries

 

Experian Limited, a company registered in England and Wales with registered number 653331 and whose registered office is at Talbot House, Talbot Street, Nottingham, NG80 1TH

 

 

Reply

 

To

Rosa Salamone

Client Queries Administrator

Experian

 

 

Dear Rosa Salamone,

I am in receipt of your e-mail regarding the answer of HBOS in regard to the entry on my credit file...the unlawful search of it by HBOS.

 

Will you confirm that you have complied with the instruction given by the ICO in that you have as I requested you obtain a copy of the is purported application, and that you have had sight of it.?

 

Should you have had sight of it you will have seen immediately that it is a fraudulent one and is a contravention of my Rights under the European Convention on Human Rights Article 8....for reason all the details are out of date, incorrect and inaccurate

 

If you have not....... then Experian are in breach of the legal guidance given by the ICO in regard to the interpretation of the Fourth Principle, ...." Data Controllers must now take further than reasonable steps to ensure that the data they are processing is accurate true and correct, these steps will depend on the circumstances of each case "......my case is one of those.

 

It is quite apparent that you have NOT taken those further steps and that you have merely "accepted the word of HBOS" over the factual documentary evidence I have supplied to you.....you therefore cannot be considered unbiased....as you aware a complaint is with the ICO....I will now make a complaint to the ICO, a supply him with all correspondence to and from Experian.

 

Therefore I demand that you remove the data and record of this search under section 10 of the Data Protection Act as it is causing me and my partner extreme and severe distress anger and utter frustration and vexation.I await your compliance of this demand or alternatively the reason you will not comply, within the specified time allowed under the Data Protection Act.

 

Yours sincerely

[Sparkie1723]

I sent another follow up E-mail to Experian

 

Ref EMR3556773X.

 

Dear Customer Services,

 

With reference to my previous e-mails and your replies regarding the unlawful search by the BOS, I request that you supply me with the EXACT full detail of the information that you have supplied to the BOS as per what they stated in their letter to me (of which I have supplied you with a copy), wherein the BOS state

 

Quote..."On information supplied by Experian our credit reference agency ".. I therefore request you supply this same information to me.

I also inform you that BOS did not supply me with a fair processing notice as per the requirement of the DPA informing me of their intent to access my credit file prior to undertaking this unlawful search.

 

Yours sincerely. sparkie

 

 

Then I got this e-mail from Experian with the normal woffle.

 

Thank you for your email, which we received on 09 October 2008.

 

I note your comments and would advise that HBOS have confirmed to us that the entry is correct and relates to an application is for a UNison Credit card underwritten By HBOS ( Halifax).

 

Credit reference agencies simply store credit account records on behalf of lenders. As a result, if you have any queries about a credit account you should contact the company direct. I cannot change these records without the lender's consent.

 

I would like to take this opportunity to explain to you in full the processes we have in place when an individual queries the accuracy of an entry recorded on their credit report.

 

Under Section 159 of the Consumer Credit Act 1974, you have the right to query information on your credit report that you believe to be inaccurate, once you have received a copy of your report.

 

You may wish to refer to the relevant legislation below that outlines the process we adhere to when dealing with disputed information.

 

CONSUMER CREDIT ACT 1974

 

159 Correction of wrong information

(1) Any individual (the ?objector?) given-

(a) information under section 7 of the Data Protection Act 1998 by a credit reference agency, or

(b) information under section 158,

who considers that an entry in his file is incorrect, and that if it is not corrected he is likely to be prejudiced, may give notice to the agency requiring it either to remove the entry from the file or amend it.

(2) Within 28 days after receiving a notice under subsection (1), the agency shall by notice inform the objector that it has-

(a) removed the entry from the file, or

(b) amended the entry, or

© taken no action,

and if the notice states that the agency has amended the entry it shall include a copy of the file so far as it comprises the amended entry.

 

I also draw your attention to the fourth Data Protection Principle, which states that:

 

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

 

Within Schedule 1, Part II (Interpretation of the Data Protection Principles) of the Data Protection Act 1998 it is explained that, as a credit reference agency, we are not considered to have breached the Act by querying the disputed information and adding a Notice of Dispute statement.

 

7. The fourth principle is not to be regarded as being contravened by reason of any inaccuracy in personal data which accurately record information obtained by the data controller from the data subject or a third party in a case where-

(a) having regard to the purpose or purposes for which the data were obtained and further processed, the data controller has taken reasonable steps to ensure the accuracy of the data, and

(b) if the data subject has notified the data controller of the data subject's view that the data are inaccurate, the data indicate that fact.

 

Our regulator considers our action to query disputed information with the data provider as taking additional steps to verify the accuracy of the entry and by adding a statement to this effect to your report we are recording your viewpoint that the entry is inaccurate.

 

Therefore, we were choosing to take no action with regards to your initial request to remove this information from your report. Should you wish to verify this you can contact our regulator at the following address:

 

The Information Commissioner's Office: Wycliffe House, Water Lane, Wilmslow, SK9 5AF

 

In view of this, I am of the opinion that we have acted correctly throughout this matter and in accordance with the relevant legislation. I remind you that under the terms of the Data Protection Act 1998, each lender that supplies us with information is obligated to ensure that the data is accurate and kept up to date.

 

I hope this explains why we cannot act unilaterally to remove data from your report, especially when the company concerned has confirmed it to be accurate or has not authorised us to make any amendments, as in your case.

 

Furthermore, as we also have a responsibility to enable lenders to make informed lending decisions, I am sure that you can appreciate why we cannot amend information simply because the individual concerned claims that the data is incorrect.

 

If we operated in this way, any individual could claim that all the adverse information on their report was inaccurate purely as a means of improving their credit report. This would put our clients at risk by enabling people to potentially obtain finance that otherwise would not be offered to them.

 

Because of this, if a consumer disputes information on their report we query this with the data provider. The only instances where we would remove information without direct authorisation from the data provider is if a Court Order is provided that specifically states that an entry should be deleted or a ruling is made from a recognised regulatory body.

 

If you are unhappy with the outcome of the queries that we raised on your behalf, then I suggest that you take up this matter with the Information Commissioner's Office. I would assure you that we will act promptly on any resulting instructions recieved from the Information Commissioners Office.

 

Kind regards

 

Mr Neil S Stone

Consumer Service Officer

CreditExpert

 

 

My Reply

 

13 October 2008

To Mr Neil S Stone

Experian

 

Dear Mr Stone,

 

I am in receipt of your e-mail letter and am aware of the type of "standard" reply that are formulated by CRA's when replying to individuals disputes. I quote your paragraph here;

 

"Our regulator considers our action to query disputed information with the data provider as taking additional steps to verify the accuracy of the entry and by adding a statement to this effect to your report we are recording your viewpoint that the entry is inaccurate."

 

Your regulator is the ICO, that office does not consider the steps you have taken in my particular case is more than reasonable steps...as the steps you have taken are the "normal" steps you take in all disputes, and in every case.

These steps are only considered... "reasonable" .

 

I re-iterate the following ( I have supplied you with this previously) which you have ignored.

 

The legal guidance given by the ICO in regard to the interpretation of the Fourth Principle, ...."Data Controllers must now take further than reasonable steps to ensure that the data they are processing is accurate true and correct, these steps will depend on the circumstances of each case "......my case is one of those.

 

By your own admission you have taken exactly the same steps as you take in all disputes about data on an individuals credit file, no more ...no less.

 

I have specifically requested that you obtain a copy of the "alleged" application...this would show that the application is indeed a... false ..fraudulent one.

 

You have failed me not only under the Data Protection Act in your duty as a professional body, in that you have not availed me of that duty of care to ensure that the information and further confirmation from the BoS is true.

 

You have again I restate merely taken over mine, even after my asking that you obtain the necessary proof required to access my credit file to carry out the search on 12th September 2008.

 

Experian are constantly reminding consumers by way of adverts and their website about fraud when in fact Experian are complicit in a fraudulent action with the BoS.

 

Experian have not even taken the steps to ensure that the BoS had a) my signed consent to search my file and b) a legitimate reason.

 

To date Experian are in breach of the First and Fourth Principles of the Data Protection Act.

 

Copies of all correspondence to and from Experian is being dispatched to the ICO, to be included in my file of complaint.

 

In order to make you aware of the fact as to how serious the ICO considers my complaint, I filed my complaint by post on 29th Septemeber 2008....normally a complaint to the ICO is taking 8 to 12 weeks before it is allocated a case worker and given and assessment number...my case has been allocated a caseworker with a reference number of RFA0216294 this was given to me on 8th Oct 2009 a matter of 8 days

 

Had Experian obtained the copy of the alleged application as I requested, it would have been seen and abundantantly clear that, the application would have been a mirror of the application made by me 3 1/2 years ago, and was therefore indeed a fraudulent one

 

Experian have failed in their obligations to me as "the legitimate interests of a data subject over ride those of a data contoller."

Both Experian and BoS are data controllers.

 

Once the Information Commissioners has investigated my complaint has completed his investigation.

I put Experian on notice that I will be taking action via the courts for failing to proffer a duty of care to me and for alleging that I as a person are of lesser status and stature than the BoS.

You imply that... BoS are telling you the truth and that I am not, therefore without proof you are acting as the law. In other words imply that I am a liar.

I have supplied you with documents that point to the fact that I am more likely to be telling the truth....BoS have provided you with none.

 

Yours sincerely

[Sparkie1723]

I then sent this off to the Information Commissioners Office along with copies of the e-mails from and to Experian.

 

sparkie

 

 

Dear Sir,

 

I have made the Information Commissioners Office (Information Commissioners Office) aware of my complaint and dispute as in the complaint Number stated above.

 

I would like the copies of E-mail correspondence to and from Experian Credit Reference Agency who had previously told me in a telephone conversation that if I sent all information to them they would carry out a thorough investigation into the matters raised.

 

It is quite apparent in their correspondence they did not, and have no intention of doing so.

 

Experian have not addressed any of the issues I stated in my correspondence to them, as the issues and facts link Experian to the actual facts as dual data controllers, I therefore request that the Information Commissioners Office investigate Experians role and participation in the fraudulent application for a credit card with the Bank of Scotland, the subject of which my complaint to the Information Commissioners Office has been made.

 

I did not and have not made any application for credit to the BOS or the HBOS, since April 2005 as stated and show in the documents you are in possession of.

 

I trust that the matter is investigated by your office as quickly as possible, as it is causing both myself and my partner severe distress, we are directly linked via our credit file "association".

It is abundantly clear that CRA's are not impartial and are truly biased toward a supplier, for reason to antagonise a supplier would most probably result in a loss of business, the supplier could possibly cancel the contract with a specific CRA and use another one.

 

 

Yours sincerely

Edited October 25, 2008 by Sparkie1723

[Sparkie1723]

Corporate responsibility

Experian Group

Annemarie Shillito T: 44 (0) 115 934 4393 Head of Global Corporate Responsibility F: 44 (0) 115 934 4535 Experian, Talbot House, Talbot Street, Nottingham, NG80 1TH E: [email protected]

 

I then sent this off to the person below

To

Annemarie Shilito

 

Dear Ma’am,

I hereby send you below a copy of a reply to one of several E-mail letters to your company’s customer service department, the one referred to is I believe quite explanatory, if you obtain my file, you will see the full substance of my correspondence , having had no reply to this last letter, I now bring it to your personal attention.

 

I trust that you will also address my request that I ask you to forward a copy to each of the management personal named below, as failure to address these issues will result in immediate court action against each and every person listed below for libel and defamation of character in the County Court, I remind you that loss does not have to be prooved in a defamation case and libel can now be actioned in County Court provided the Claimant claims no more that £10.000 damages, but separate claims 7 x £10.000 == £70.000

 

My claim will be the fact that the writer of the letter on behalf of Experian Mr Stone has implied that I am a liar, and as the management under corporate law are just as responsible for the actions of their employees, because I am utterly disgusted and distressed as to the assumed power of Experian I will take this action unless a substantial sum of compensation is offered for this unfounded implying that I am a liar and the word of the Bank of Scotland has merely been accepted over the documented contrary evidence I have supplied Experian that the fact is indeed reversed.

I do not intend to enter into further time wasting correspondence and suggest that you act quickly investigate and resolve this matter to my satisfaction.

 

Yours sincerely......................sparkie

 

 

copy of my letter to Mr Stone inserted here

 

John Peace

Chairman

 

Charlotte Hogg

Managing Director, Experian UK and Ireland

 

 

Don Robert

Chief Executive Officer

 

Paul Brooks

Chief Financial Officer

 

Roger Davis

Non-Executive Director

 

Alan Jebson

Non-Executive Director

 

Sir Alan Rudge

Senior Independent Director

[Sparkie1723]

I got this reply back in 4 hrs

 

 

Our Ref: PL/43168007

 

22 October 2008

 

Dear Mr "sparkie"

 

Thank you for your e-mail received earlier today, addressed to Annemarie Shillito. Your correspondence has been brought to my attention in the Directors' Office.

 

In our previous correspondence with you we have clearly outlined our responsibilities with regards to any disputes concerning the accuracy of the data on your credit report.

 

We have fulfilled these obligations in how we have handled the previous queries that you have raised and the same applies in relation to the disputed search made by Bank of Scotland on 12 September 2008.

 

Bank of Scotland confirmed that this search relates to a credit card application that you made to Unison Credit Cards and we notified you of this in our e-mail dated 9 October 2008.

 

In his correspondence Mr Stone was explaining that by querying this information and being advised that the search relates to a credit card application made to Unison Credit Cards that we have complied with our legal requirements.

 

As the data has been confirmed to be correct we are unable to amend or delete this entry on your credit report. I can ensure you that Mr Stone was not insinuating that you are 'a liar' but was simply outlining the facts in relation to the dispute that we raised on your behalf with Bank of Scotland.

 

If you believe that this application was the result of fraudulent use of your personal details then I recommend that you ask to speak to the fraud department within Bank of Scotland. You should also consider referring the matter to the police so that you can be issued with a crime reference number.

 

We are not obliged to obtain copies of documents that you have completed with a company as evidence of you making an application to that organisation, nor are they obliged to provide us with this information if we request this from them. The Information Commissioner's Office will verify this for you if you wish to obtain an unbiased opinion.

 

I note that you have placed this matter in the hands of the Information Commissioner's Office and we will explain our position to them should they choose to investigate your complaint with us.

 

We will not be offering you any compensation in relation to this matter as I believe that we have acted correctly and in accordance with the relevant legislation at all times.

 

Should you make a legal claim against Experian I will refer this to our legal department. You can address the relevant paperwork to me using the details below:

 

Paul Lever, Consumer Compliance Manager, Directors' Office, Regulatory and Consumer Affairs, Experian Ltd, PO Box 8000, Nottingham, NG80 7WF

 

We believe that your threat of legal action is without merit. Consequently, if you do choose to issue proceedings we will instruct our solicitors to apply to strike out your case and we will seek to reclaim the costs incurred in doing so.

 

As we have fully explained our position previously we will not be answering any further correspondence about the processes we have in place for handling data disputes. If you do not believe that our processes are adequate in this regard, then I again refer you to the Information Commissioner's Office to ask them for a ruling or their viewpoint on this.

 

We will notify you of the outcome of the query that has been raised for you with MBNA as soon as we receive a reply from them.

 

Kind regards

 

 

 

Paul Lever

 

Consumer Compliance Manager

 

Directors' Office

[Sparkie1723]

I sent Mr Lever this reply

 

Dear Mr Lever,

I copy and paste the last section of your letter below, and merely add that I do not expect any reply to the points I now submit to you. I send you this for avoidance of any doubt.

With regard to your statement that an application will be made to strike out any claim I may make, I submit that would be unsuccessful as my claim will contain elements of utmost public importance

The role of CRA's and actions must be brought to the Courts and Publics attention.

 

Yours faithfully

 

Mr sparkie

 

"As we have fully explained our position previously we will not be answering any further correspondence about the processes we have in place for handling data disputes. If you do not believe that our processes are adequate in this regard, then I again refer you to the Information Commissioner's Office to ask them for a ruling or their viewpoint on this"

 

 

My claims & Allegations, Charges against Experian.

Regarding The Bank of Scotland

 

 

1. On the 12th September 2008 at approximately 11:00 am Experian did allow the Bank of Scotland (BOS) to gain open access to my credit file and allowed a search to be made by the BOS of that file and obtain personal, and financial data and information about me.

Due to the fact that I am linked to my partner by way of “association” Experian also allowed the BOS to gain open access to her credit file and obtain data and information about her financial and personal situation.

 

2. It appears I have been informed, this search was carried out because it is alleged that an application was made by me for a Unison Credit Card.

 

3. A complaint was made to Experian and they were informed that I had not made any application to the BOS for any type of financial facility including a credit card, I therefore requested that Experian remove the record of this search from my credit file as this application was a false fraudulent application, and that this was an unlawful search. .

This request was denied

 

4. A request was also made to for Experian to confirm exactly what data was supplied to the BOS as per the letter to me from the BOS dated 12th September 2008 which stated …”On information supplied by our Credit Reference Agency Experian…..”

A copy of the letter from the BOS was sent to Experian

 

5. Experian have also refused /ignored this request. It is therefore unknown to both my partner and I as to what information the BOS now have about us which has been obtained unlawfully

 

6. A complaint was filed with The Information Commissioners Office (Information Commissioners Office)

 

7. Numerous and various e-mail correspondence to and from Experian continued.

 

8. Another request was also made to Experian for them to obtain and have sight of a copy of this “alleged” credit application as this would have contained the necessary “Fair processing notice” containing my signed consent giving the BOS the authority to access my credit file and further process data.

 

9. Experian in turn have stated that they are not obliged to obtain documental proof of consent .

 

10. Using Experian’s own advice which is used to reinforce customer reassurances reads very clearly Quote..

 

Question …..“ Can anyone search my report?”

Answer…….. No, searches can only be made with your consent. This is usually given at the time you apply to a lender.

 

11. It must be noted here that the word “usually” is used, the question arises here, what if consent has not been given? As in my particular case.

 

12. As Experian have stated that they are under no obligation to obtain documents which would contain this consent raises the question ……

How can Experian therefore claim that they comply with the First Principle ( lawfulness of processing of data, processing now means obtaining of data) and the Seventh Principle of the Data Protection Act security of data? If Experian do not know for certain that confirmed consent has been given by a data subject to a supplier/searcher, then Experian also do not have the assumed protection and reliance on that suppliers consent.

 

13 A further question and answer is copied here

Question….Do I have a right to privacy?

Answer…..Under , you have the right to privacy. However, whenever you apply for credit you will give the lender permission to share information about you with credit reference agencies and others. This will be part of the contract between you and the lender. However, you can contact lenders directly and ask them not to use information about you for marketing purposes.

 

14. As Experian failed in their duty to ensure that the BOS had that consent, and allowed BOS to carry out that search, it was not only a breach of the First Principle of the Data Protection Act (Data Protection Act) ( unlawful processing), but a failure of the obligatory duty Experian have to me under the Seventh Principle of the afore said Act to protect that data, but also a contravention of my rights to privacy under as confirmed in their own advise.

 

15. It is apparent that Experian quote all the data subjects rights and then totally disregard them

 

16. By maintaining a record of this search on my file and refusing to remove it under a section 10 request for its erasure/deletion as it is a fraudulently made search and therefore inaccurate as to fact, is a breach of the Fourth Principle of the DPA act. It is also a further contravention of article 8 of the European Convention on Human Rights, which states in regard to incorrect data quote “an individual has the right to have it corrected“.

 

 

17. Experian have informed me that the BOS allege that the search was carried out with my consent as the result of an application made by me for a Unison credit card on 12th September 2008. I did not make any such application nor any other application for any financial service or assistance to the BOS

 

18. The BOS cannot and will not supply me with a copy of this application and provide me with the evidence that I have given my consent.

 

19. They also state in answer to my request for a security trace be made to ascertain from where this application originated in compliance to the legal guidelines given by the Information Commissioners Office.

I made this request under the Seventh Principle of the DPA, which state that security systems should be in place to enable audit trails be kept so that access to personal data be logged and can be attributed to a particular person..

The BOS have stated that they can not do this.

 

20. In accepting that BOS merely say that the search was lawful Experian have decide that BOS are right and stating the truth, without any evidence/proof that it is true

In doing so have made a decision that should can be ruled on in a Court of Law. I submit Experian are assuming they are the law. Also in doing so that even with the documentary evidence I have submitted to Experian consider I am not telling the truth and are, as I have claimed before imply that I am a liar. This is unacceptable and beyond their position and is an abuse of it.

 

21. I will therefore be taking action in the County Court personally against AnneMarie Shilito for negligence, in failing to ensure that the employees for who’s actions she is responsible, carried out their duties with due care and diligence, by not ensuring all the above claims, failed in that duty they are legally bound to proffer me under the legislation referred to in the above paragraphs.

 

22. I also intend to issue proceedings against Experian as a company as soon as the Information Commissioner has completed his investigation.

 

A copy of this list of claims and allegations is being sent to the Information Commissioners Office, along with all the latest correspondence to and from Experian.

Edited October 25, 2008 by Sparkie1723

[Sparkie1723]

Have sent a rely to Mr Lever with regard to the last part of his letter, about an MBNA entry

 

"We will notify you of the outcome of the query that has been raised for you with MBNA as soon as we receive a reply from them."

 

 

Dear Mr Lever,

 

 

I refer you to the final section of your e-mail letter to me regarding MBNA copied below;

Quote

"We will notify you of the outcome of the query that has been raised for you with MBNA as soon as we receive a reply from them." As I can forsee the outcome and reply from MBNA which will be ....."The information supplied by MBNA is correct" which of course you will accept, and state the usual phrase "we therefore cannot amend the entry without the suppliers permission.

 

 

 

MBNA

 

I now place before you the facts regarding this supplier of data to Experian, which is being accepted by Experian and applied to my credit file.

 

1...On making the last payment to MBNA I advised them that I disputed the account and that I would be suspending any further payment until the dispute was resolved, |I pointed out to them that as they had accepted the New Banking Code of Practice which came into operation in May 2008, that in line with the undertaking given under the Code, that they should cease to supply any & all third parties with any personal about and financial information about any accounts held by me, that included Credit Reference Agencies.

 

2...At the same time I advised Experian well in advance of the above facts, and should MBNA supply any data about my account that Experian should refuse to accept it, as Experian would be complicit with MBNA for the breach of that code.

 

3...The Data Protection Act states that data controllers should abide by all laws, statutes, rules and regulations that are in force at the time.

 

4...Experian have totally disregarded my advise letter of explanation and all above in the previous numberd paragraph.

 

5...As I note from my credit report that MBNA have broken that undertaking and supplied a late payment notice to Experian, and that Experian has added a late payment marker to my file, once again showing the disdain Experian have for any regulation, law or statute.

 

6...I therefore submitted a notice of dispute/correction to Experian, as is my right under the Consumer Credit Act, The Data Protection Act, and the European Convention on Human Rights article 8 ( the right of an individual to have data about him corrected).

 

7...This notice was submitted in compliance with Experian’s own advise that it was not more than 200 words, it was not scandalous, frivolous, defamatory or incorrect in any way.

 

8...Experian in their assumed “ High and Mighty” belief that they have ultimate power over all individuals they hold data about, did not apply the wording of my notice, instead changed it to their standard wording, denying me my rights under the legislation stated and took away my basic human right, of the right to an opinion and freedom of expression that is not derogatory.

 

9...Had my notice been detrimental in any way it could be accepted that a right was available to Experian not to accept my wording, but it was not.

 

10 ..This again highlights the double standards Experian operate in that they

a) Accept all data and information supplied to them by their clients as fact, not detrimental or defamatory without question ; BUT

b) will not and do accept an individuals information which is more than likely to be factual and true.

 

11..It is well known that a high proportion of information accepted and held by CRA’s is in fact innacurate "as to matter of facts", I can assure you that if necessary I will obtain countless examples and evidence to the court, from the many consumers who subscribe to various consumer web sites to support this fact and claim.

 

12.. Points such as I have highlighted in this letter must be finally clarified and ruled on in a Court of Law, I intend to obtain that ruling, as it is a matter of supreme public importance.

 

Yours faithfully

 

 

sparkie

[Sparkie1723]

Just to make Mr Lever realise that I'm serious, and not easily put off with Experians standard woffle.

I have followed up with this e-mail letter, it will greet him monday morning.

 

Dear Mr Lever,

 

Unfortunately it is necessary for me to write to again, but I omitted two other points of dispute from my last e-mail letter to you.

I wish to draw your attention to another section of Mr Stones letter to me, the section I wish you to explain is copied below;

“Quote”

"Furthermore, as we also have a responsibility to enable lenders to make informed lending decisions, I am sure that you can appreciate why we cannot amend information simply because the individual concerned claims that the data is incorrect".

 

This is another issue and point which I believe must be clarified by the Courts.

 

I refer to the sections I have highlighted and underlined in red.

 

Referring to the first underlined section I merely add that you also have a responsibility to an individual to ensure you do not defame him/her, should Experian not wish to have defamation action taken against them.

 

It has already been confirmed to me that Experian never ask or have sight of proof that the information they accept and further process, and pass on to third parties, is accurate and true i.e documentary proof, and further say they are not obliged to obtain that documentary proof, I have addressed that in my previous letters and asked for your comments.

 

When an individual disputes the information, again Experian merely ask the supplier if it is correct and,….. IF the supplier merely states it is without giving proof.

Experian accept that.

 

Questions; I have asked these before and I ask it again

Why do Experian accept the claim of the supplier?, and it is purely and simply a claim and state to an individual what is underlined in red of the above copied paragraph.

What gives Experian the right to decide who is right and who is wrong?

What and who give Experian the right to be judge, jury, and prison warden?

 

In a court of law this will no doubt be considered bias and/or discrimination.

This must be clarified in a court of law.

 

Despite what Experian attempt to argue, when a credit file is searched, should it contain detrimental data that Experian refuse to amend or suppress, until it is proven to be accurate and correct, it is Experian that is fully responsible for passing/processing/sharing that detrimental data on to third parties …and not the supplier of that data, they do not pass it on any further than Experian.

 

Once in the “hands” of Experian it is Experian who decide if and when to pass it on, and to whom, a service for which they charge. Therefore if that data is incorrect and is defamatory/detrimental, then Experian are subject to defamation claims. They are to be held fully responsible.

 

It is issues such as these that are the “blank spaces” in the Data Protection Act legislation and must therefore be clarified by the courts.

 

Yours faithfully

 

sparkie

 

 

Everyone who reads this is now up to date as to where I am with Experian

 

sparkie

[spark1]

Thanks for the update sparkie, really hope you get justice. Didnt realise how thick skinned these outfits are

 

Spark1

[Sparkie1723]

Just had this E-mail from my friend Mr Lever, in reply to the letter on post 7...looks like I've forced him to accept my notice of dispute and remove their "standard woffle"

that' s the first round about another 11 to go I suppose.

 

 

Sparkie

 

 

 

 

 

Our Ref: PL/43168007

 

28 October 2008

 

Dear Mr Sparkie

Thank you for your e-mail received on 24 October 2008.

 

I am now in receipt of a reply from MBNA Europe Bank Ltd in relation to the account recorded by them on your credit report.

 

MBNA Europe Bank Ltd has confirmed that the account details are accurate and have requested that we retain the account information on our database. We are therefore unable to amend or delete this information.

 

MBNA Europe Bank Ltd have advised that if you have any further queries or wish to discuss this further, you can contact them on 0800 062 062. Alternatively, you can write to the following address:

 

MBNA Europe Bank Ltd: Credit Bureau Team, MBNA Europe Bank Ltd, UK 8923, Chester Business Park, Chester, CH4 9FB

 

By querying the disputed information we have complied with your rights and fulfilled our obligations as per Section 159 of the Consumer Credit Act.

 

The action we have taken is also considered compliant with the Data Protection Act 1998 and the Information Commissioner's Office will be able to verify this should you require confirmation.

 

In view of this account not being amended or deleted I am adding the following statement to your credit report, as requested:

 

"THIS ACCOUNT IS IN DISPUTE WITH THE LENDER, AND HAS BEEN LONG BEFORE THE LATE PAYMENT MARKER WAS SUPPLIED. I ALSO INFORMED EXPERIAN THAT THE ACCOUNT WAS IN DISPUTE BEFORE THE LATE MARKER WAS APPLIED. BY SUPPLYING LATE PAYMENT MARKER THIS SUPPLIER IS IN BREACH OF THE NEW BANKING CODE OF PRACTICE. SUPPLYING INFORMATION WHILST ACCOUNT IS IN DISPUTE. EXPERIAN SHOULD NOT ALTER THIS NOTICE. IT IS FACTUAL, ACCURATE AND TRUE, AND SHOULD NOT APPLY THE LATE MARKER. A COPY IS BEING SENT TO THE OFT FOR CHECKING AS FIT TO APPLY TO MY FILE. IT IS NOT DEFAMATORY. SIGNED Mr Sparkie."

 

Please note that by adding this statement Experian does not accept that MBNA Europe Bank Ltd is in breach of the new banking code but we accept your entitlement to have an opinion about this as long as the statement is not defamatory to the company concerned. As you have not named the company then we accept that your statement cannot be defamatory.

 

This statement will replace our standard Notice of Dispute statement below, which was added to the MBNA Europe Bank Ltd account whilst the entry was being disputed.

 

"THE CONSUMER HAS DISPUTED THE ACCURACY OF THIS ENTRY AND WE HAVE THEREFORE ASKED THE PROVIDER TO INVESTIGATE IT. GIVEN THAT THIS DATA IS DISPUTED, PLEASE TAKE CARE IF MAKING AN ASSESSMENT OF ANY KIND THAT MAY INCLUDE THIS DATA."

 

This amendment will take effect within the next seven days.

 

Kind regards

 

Paul Lever

 

Consumer Compliance Manager

 

Directors' Office

[Allwood]

Well done...keep at it;)

[Sparkie1723]

The plot gets thicker...Just sent this e-mail to our Mr Lever.

 

sparkie

 

Dear Mr Lever,

 

You will recall the considerable correspondence I entered into with you with regard to the fact I claimed that Experian had allowed unlawful access to my Credit File by the Bank of Scotland on the 12th September 2008.

 

Of course you took the stance that Experian had not allowed an unlawful search, because on recording my notice of dispute and despite providing you will substantive evidence to prove that it was unlawful, refused to remove the record of that search.

 

You stated that Experian could not because the Bank of Scotland (BOS)stated that it was a lawful search made by the authority of an application for a credit card made by me.

 

I categorically informed you that no such application and/or of any other product from the BOS had been made by me, and requested that you obtain proof from the BOS of this application. You failed/refused to do this.

 

I also informed you that this was a fraudulent application made from within the BOS.

Again you took no notice and maintained your stance of righteousness and abusing your position.

 

I also informed you that BOS had refused my request to supply me with a copy of this “application”.

You took the mere word of the BOS over my supplied documented evidence to the contrary.

 

On 27th September 2008 I made a subject access request to The Specialised Lending Team of the BOS ( received by BOS on 29th September 2009 from whence this “application” was stated to have originated from, you will recall giving me that address. The BOS did not respond/acknowledge/comply with this request.

 

On 20th January 2009 I followed up with a letter to Specialised Lending Team BOS, giving them a further 10 days to comply with my Subject Access Request.( received by BOS 21st January 2009)

 

I also sent copies of all the correspondence and initial request letter to The Data Protection Officer in HBOS Halifax. ( received by BOS 21st January 2009)

 

Today I telephoned that office for information about my request and to officially complain that my request had not been complied with and the reasons why.

 

I was informed that my original request made by me in Sept 2009 had only just been passed to them by The Specialised Lending team last week.

 

This department had deliberately with held my request until my follow up letter demanding compliance to that initial request.

 

During my telephone call conversation with the Data Protection Officer, who apologised most profusely, I was informed that there is no record of any such application of any description showing on my data files held by the controller and certainly no record of an application being made by me on or around the date of the search of my credit file by the BOS.

 

More importantly there is no record of a search being made of Experian’s data banks, held on the data banks held by the Data Protection Officer.

 

I will be enlarging on Experian’s role in this matter in a later follow up E-mail.

 

I would like your first reaction and comments to this latest information, in that you allowed unlawful access to my Credit File which is a contravention of my Rights under the European Convention on Human Rights ( article 8 ) as well as a contravention of the UK Data Protection Act

 

 

Yours sincerely sparkie

Edited February 2, 2009 by Sparkie1723

[Sparkie1723]

Brief scenario recap so far.

 

Sept 2008 Bos send me a letter decling an apllication for a credit I didn't make.

 

BOS had searched my credit file with Experian under this so called application

 

BOS confirm to Experian search was lawful by way of this application.

 

Experian believed them, would not remove the record of the search , would not obtain proof( copy of the application)

 

BOS refuse to supply me with a copy refuse to carry out an audit trail search tosee where the application came from.

 

BOS remove search as a " gesture of goodwill", still saying search was lawful and the application "appeared to be genuine"

 

BOS refuse to comply with SAR.

 

Gee up letters sent, 20th Jan

 

The aplication search was unlawfully made on a fraudulently concocted application as BOS informes me what the application information consisted of info 4 years out of date.

 

Data controller for BOS says no application was made ...no record of the application and;

no record of a search being made with Experian

 

post above brings it all up to date.

 

Then I get this email from Mr Lever

 

2 February 2009

 

Dear Mr sparkie

 

Thank you for your e-mail received on 2 February 2009.

 

As outlined in previous correspondence, Bank of Scotland confirmed that the search that they made on your credit report on 12 September 2008 related to an application that you made for a Unison Credit Card.

 

This man cannot read or understand English I have just told him that the Data Controller has no record of thsi "ficticous" application and has no record of the search which they MUST keep for six years irrespective of the fact Experian have deleted it from their files things are going to get a bit rough for mR Lever you can bank on that...thats good isn't " Bank on that"

When we queried this information Bank of Scotland confirmed that the search is accurate and therefore that the search that they undertook was lawful and compliant with the Data Protection Act 1998.

How can it be lawful when there is no record of an application being made ....IT must have been delibrately destroyed

The search has subsequently been deleted from your credit report by Bank of Scotland and this is evident from the credit reports you have viewed online since November 2008. The fact that this search has now been deleted probably accounts for why Bank of Scotland can no longer find a record of this. What a load of rubbish

 

In view of this, as your report no longer shows any reference to this search, any remaining queries you have concerning why this search was originally made need to be directed to Bank of Scotland.

 

I cannot arbitrate as to whether a company has complied with a direct request that you have made to them for information. I recommend that you pursue this with the Information Commissioner's Office if you believe that there has been a failure to comply with the requirements of the Data Protection Act 1998.

 

Kind regards

 

Paul Lever

 

 

 

 

sparkie

[Sparkie1723]

Sent Mr Lever this....LOts going on

 

Dear Mr Lever

 

I thank you for your e-mail relpy I just wish to inform you AGAIN of the facts.

 

Sept 2008 BOS send me a letter decling an apllication for a credit I didn't make.

 

BOS had searched my credit file with Experian under this so called application

 

BOS confirm to Experian search was lawful by way of this application.

 

Experian believed them, would not remove the record of the search , would not obtain proof ( copy of the application)

 

BOS refuse to supply me with a copy, refuse to carry out an audit trail search to see where the application came from.

 

BOS remove search as a " gesture of goodwill", still saying search was lawful and the application "appeared to be genuine"

 

BOS refuse to comply with SAR.

 

Gee up letters sent, 20th Jan

 

The aplication search was unlawfully made on a fraudulently concocted application as BOS informed me what the application information consisted of.......... info 4 years out of date.

 

Today

 

Data Protection Officer of BOS Halifax Head Office told no application was ever made by me ...they hold no record of the application or any other up to date information except certain letters I wrote to the Chairmans Office threatening action against Lord Stephenson and;

Have no record of a seach being made with Experian which I was informed by the Officer BOS are obliged under the data protection act to keep a record of for a minimum of sx years

 

IF this application EVER existed....IT HAS BEEN DELIBERATELY DESTROYED BY THE PERSON WHO FRAUDULENTLY CONCOCTED IT which is aN Act of Fraudundr the New Fraud Act of 2006 and Experian are complicit with it because they allowed the search to be carried out ...it is irrellevent that it has been deleted from Experians data base ...it is the fact that Experian allowed the search in the first instance.

 

Yours sincerely

 

sparkie

[Sparkie1723]

Two more E-mails from Mr Lever and my replies in blue

 

sparkie

 

First

 

Dear Mr Lever,

 

Thank you for your speedy reply, I copy it and add my comments for ease of reference in blue italics, no offence is intended

 

 

 

Our Ref: PL/43168007

 

3 February 2009

 

Dear Mr Sparkie

 

Thank you for your e-mail received on 2 February outlining your version of events with regards to the search conducted by Bank of Scotland that has subsequently been deleted from your credit report.

 

When a company performs a search of our records they have to indicate that they have the consent of the individual concerned to view their credit report before we permit them to access the data. This indication is given by the company ticking a box to positively confirm that consent was attained prior to making the search.

 

Will you kindly supply evidence of this box ticking and the document the box was ticked, please ensure it is genuine as I can then ask microsoft to trace and authenticate the origin of the box ticking, a friend of mine has a contact who works for microsoft and says he is willing to do this as a favour.

 

The only exception to this is if the company tick a second box that outlines that although they do not have consent from the individual concerned to make the search that they do have a legitimate reason for making a search where consent is not required. An example of this would be a search made for tracing an individual who owes the company money or in connection with legal proceedings.

 

Again I would like to see if it was the second box you refer to was "ticked"

 

By making companies positively confirm that they have attained consent or have a legitimate reason whereby consent is not required our regulator considers this as taking "reasonable steps" to ensure that data is only accessed for legitimate purposes.

 

The legal guidance given by the ICO (your regulator ) states that data controller may have to take MORE than reasonable steps under the 1998 Act , the extent 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 inaccuracy for the data subject. This approach exceeds the requirements of the Fifth principle of the 1984 Act .

 

My case without doubt falls into this statement

 

All of our clients must comply with the requirements of the Data Protection Act 1998 and their access to our data could be compromised by making unauthorised searches so it is not in their best interests to make non-compliant searches.

Experian are classed in these instances as "dual data controllers" each with the same responsibility to each other and both having the same resposibility for each others actions.

 

With regards to the search made on you by Bank of Scotland, they will have indicated that they had your authorisation to make a search of our records. We do not require companies to provide us with a copy of a completed application form for each of the hundreds of millions of searches made of our database each year.

 

Again I refer to " they will have indicated that they had my authorisation" please supply the documentary evidence of this fact I will require this information for any Court action I take against who ever I decide to take action against.

As we have fulfilled our requirements and complied with our obligations throughout this matter and the search by Bank of Scotland no longer appears on your credit report we will not be corresponding any further in relation to this search entry.

 

I do not agree you have fulfilled your responsibilities under the Act, and I do certainly expect more correspondence on this issue in that you supply the documents I have requested failure to supply them will only result in a CPR 31.6 application being made to the court to force you to supply the documents requested.

 

Yours sincerely

 

 

Dear Mr Sparkie

 

Thank you for your e-mail.

 

I am unable to provide you with copies of the information that you seek. We do not retain a copy of this information, as the only record of the search being processed is that shown on your credit report. Therefore, even if you do obtain a court order we will not be able to supply you with this information.

 

This I will submit as a breach of the Seventh Principle of the Data Protection Act, of course the record would show on a credit report, it is the authority you keep referring to that you say the BOS had and you must provide that proof to avoid my allegation of Experian allowing the unlawfuI obtaining of data that I require, and have requested.

 

However, as the application was processed as an application for a credit card we know that Bank of Scotland ticked the box indicating that they had your consent to process this search of our records. Credit card searches are only possible by ticking the box outlining that consent was attained.

 

How can you make this statement? that the box was ticked when you have no evidence to proove it, it is merely an assumption which is not acceptable. I will now most certainly summon you personally to Court to confirm this fact under oath and use this e-mail as my reasons for asking you that particular question. How can you say that the BOS ticked the box. You will be put to strict proof, that you actually had sight of the box that was ticked, I will not merely accept your word and neither will the Court and due to the fact that you keep avoiding the issues, that is where I must go it appears. You will be expected to have the documentary evidence to make this statement. You are of the belief that all must believe and accept all that Experian say and that Experian's word is sacrosanct.We now consider this matter closed.

 

I do not consider the matter closed in any way

 

Kind regards

 

 

 

Paul Lever

[Sparkie1723]

More from Mr Lever....note he says he won't discuss this any more and refers to a case Experian had won.

 

Up to date now

 

3 February 2009

 

Dear Mr Sparkie

 

As already explained, it is not possible to make a credit card search without ticking the box indicating that consent was attained from the individual to whom the application refers.

 

Therefore, the fact that a Bank of Scotland search appeared on your credit report is proof of the fact that Bank of Scotland ticked this box when processing the search. Otherwise, this search would not have appeared on your credit report as a credit card application.

 

We are not obliged to provide you with screen prints of all of the systems that our clients use.

 

Experian won a court case against an individual who raised a claim on exactly this point. Once we explained that a search of this type can only be conducted once the company performing the search has indicated that they have attained consent then the court ruled that Experian had acted in accordance with the Data Protection Act throughout.

 

The court also agreed with our view that the claimant's dispute was actually with the company who conducted the search and not Experian, as we had only permitted access to the data on the basis that the company confirmed that consent was attained. Therefore, we are confident that the steps we take with regards access to the data that we hold are compliant with the Data Protection Act.

 

I reiterate that Bank of Scotland has confirmed that they had your consent to process a search.

 

We will not be answering any more correspondence from you on this matter.

 

Kind regards

 

Paul Lever

 

I wrote back and said not every case is the same and that mine contained fraudulent activity that Experian failed to stop, and then I sent him this, saying my case will be under the European convention on Human Rights Article8 and not JUST the Data Protection Act.

 

Heard no more, so when I get all my Subject Access Request info off the BOS its me and Experian and the BOS with the gloves on, without any doubt.

I with issue a claim as a joint one against them.

 

Sent Mr Lever this as well

 

LawfulnessThe Act does not provide any guidance on the meaning of “lawful”. The natural meaning of unlawful has been broadly described by the Courts as “something which is contrary to some law or enactment or is done without lawful justification or excuse”. (R v R [1991] 4All ER 481). The term applies equally to the public and private sector and to breaches of both statute and common law, whether ******** or civil. An example of information unlawfully obtained might be information, which is obtained as a result of a breach of confidence or in breach of an enforceable contractual agreement. Since 2 October 2000 it applies to a breach of the Human Rights Act 1998 by a data controller bound by that Act.

 

This means that a data controller must comply with all relevant rules of law whether derived from statute or common law, relating to the purpose and ways in which the data controller processes personal data.

There are certain areas of law concerning the use of information and the relations of data controllers with individuals, which have particular relevance where breaches of the first and Second Principles are being considered. These are:-

(a) Confidentiality arising from the relationship of the data controller with the data subject.

(b) The ultra vires rule and the rule relating to the excess of delegated powers, under which the data controller may only act within the limits of its legal powers.

© Legitimate expectation, that is, the expectation of the individual as to how the data controller will use the information relating to him.

(d) Article 8 of the European Convention on Human Rights (the right to respect for private and family life, home and correspondence).

[UK26]

keep up the good work.

[Sparkie1723]

keep up the good work.

 

Thanks UK26

 

I'm watching your thread too

 

sparkie

[Pab10]

Subbing with interest.

Good luck.

[Sparkie1723]

Subbing with interest.

Good luck.

 

 

Thanks Pab10.

 

 

sparkie

[Sparkie1723]

Had to turn the light on MBNA info on my credit file so here's what has gone on with that, sent Mr Lever this E-mail

 

9th February 2009

 

Dear Mr Lever,

I have received a standard notice from MBNA that it is intended to apply a default on my Credit file on 24th February 2009. It is signed (stamped signature) by a Mr Paul Cambell.

I will be writing to Mr Cambell regarding this letter containing much I now state to you, and refer you to the E-mail I sent you this morning.

 

I restate to you in May 2008 MBNA terminated my CCA agreement and requested I cut up my credit card and return it ( you have a copy of the letter written to a Mr Paul Mcgrath regarding this on your file).

 

Cancelling this agreement meant that;

1….There was no longer an agreement in force.

 

2….The balance on the account (disputed) should show on my file as the balance at that time. It cannot be increased except by order of a Court

 

3….There were no further monthly payments due under that “alleged agreement”.

( all and any terms and conditions cancelled)

4….Therefore there could be no late payment of these said monthly payments due.

Only the “alleged balance”.

 

5…. There would be no default charges that could be applied monthly.

 

6….There could be no interest due and chargeable on the late penalty charges.

As the agreement had been cancelled and no longer in existence, reliance on the “legitimate interests” aspect cannot be accepted.

 

7….Furthermore Banking information is considered to be confidential sensitive information, and in order to process this information, at least one condition in schedule 1 had to be met and at least one in schedule 2 had to be met.

 

8…. As there is no agreement in place MBNA cannot fulfil these conditions, neither can Experian

 

9….As it is quite clear that the internal management system of MBNA is in complete disarray as I am in direct correspondence with the Vice President of MBNA over this issue, a department states it intends to enter this default. Again I refer you to the guidance on defaults given by the ICO in August 2007, when it is clear that there is a legitimate serious dispute in progress defaults should not be entered.

 

10….In any event the actual figure that Experian hold on this entry on my file is absolutely incorrect for the reasons stated above, ( Breach of the Fourth Principle).

 

11….MBNA are also in contravention of the New Consumer Credit Act 2006 (amendments) are charging contractual interest to these already unlawful Penalty charges ( late payments) in contravention of section 86F of that Act.

This contractual interest automatically means that the total “alleged” to be owed is incorrect

I strongly suggest that you remove this entry in its entirety as it is libellous and should you accept this default data with out complying with the guidance given by the ICO on entry of defaults, and apply this default to my file I will immediately issue proceedings under the Libel Act against Experian, it will not be up to me to prove the entry is 100% incorrect and true as to the exact matter of fact, it will be up to Experian to prove it is.

 

I will ensure the Court is aware of the interpretation of a false misrepresentative statement made by Lord Herchell in Derry V Peek where it was ruled that a statement is either true or false there are no half truths. Experian will have to prove that the entry is 100% true under the Libel Act not the Data Protection Act but I will refer to this also.

 

Yours sincerely

 

He replied with this

 

 

Our Ref: PL/43168007

10 February 2009

Dear Mr Grace

Thank you for your e-mail received on 9 February 2009.

I note that you have been informed by MBNA of their intention to register a default against you in relation to your credit card account with them.

MBNA make their cancellation policy perfectly clear within the terms and conditions of all of the credit cards that they issue.

If an account holder cancels a card, they must pay the whole balance, in full, before the first payment is due in order to ensure that they do not incur any interest or additional charges.

As you have not paid the full balance, you will continue to incur interest and charges on the balance that you owe and therefore the account is not considered cancelled or closed until such time that the balance is paid off.

If an individual were able to simply cancel a card and not have to pay back the balance immediately any account holder could effectively accrue a permanent interest free loan by maximising their credit limit and then instantly cancelling the card to avoid any interest or charges.

In view of this, if MBNA do record a defaulted account against you I do not believe that this will be unlawful or that we will be acting incorrectly or committing libel.

I refer to the relevant sections of MBNA's standard terms and conditions below:

"YOUR RIGHT TO CANCEL

Once you have signed, you will have for a short time a right to cancel this agreement. You can do this by sending or taking WRITTEN notice of cancellation to MBNA Europe Bank Limited, PO Box 1004, Chester Business Park, Wrexham Road, Chester CH4 9WW.

If you cancel this agreement you, will still have to repay any money lent to you. But if you repay all of it before your first payment is due, you will not have to pay interest or other charges."

"10 Ending this agreement

10c You may end this agreement at any time by paying your whole balance in full, contacting us and cutting up all cards and unused cheques.

10d After we close your account, you will still be personally liable to pay all amounts which become due to us, for example, any residual interest, any subscriptions and regular payments that you have not stopped or outstanding credit-card cheques. We reserve the right to apply interest on such amounts in accordance with this agreement."

I trust that this adequately explains that additional charges and interest can be applied to a balance owed despite an individual giving notification of their cancellation of the agreement.

Similarly, late payments and ultimately a default notice can also be recorded if the balance owed on the account continues to remain unpaid, as is the case with your account.

Kind regards

Paul Lever

Consumer Service Officer

Consumer Help Service

 

 

 

 

I sent him this quick short sharp one back

Mr Lever

 

Why do you not read your e-amails correctly..... I DID NOT TERMINATE THE AGREEMENT.........MBNA TERININATED IT.

 

 

Your sincerely

 

Then I have just sent him this one so he can read it when he comes in to work with his first cup of coffee

Dear Mr Lever,

 

I would ask where did you get all those fancy terms and conditions ...you appear to know more about my agreement than I do and I have a copy of it....My agreement consists of two pages and there are no such terms and conditions in it.

 

It does not comply with Consumer Credit Agreement Regulations 1983 (amended 2004) it does not comply with section 60 of the Consumer Credit Act 1974 nor was it properly executed by way of section 61 (1) it cannot be enforced by way of section 65 because of the case law ruling below

 

 

Wilson v First Counties Trust wherein it was ruled that;

 

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;

 

Section 127(1) of the 1974 Act is subject to the restrictions imposed by sections 127(3) and (4). Those subsections set out circumstances in which the court shall not make an enforcement order under section 65(1) of the Act. In particular, section 127(3) is in these terms:

"The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner)."

Wilson & Anthr v Hurstanger Ltd

It follows that in a case where there is no document signed by the debtor – or no document signed by the debtor which contains all the prescribed terms of the agreement – the court has no power to make an enforcement order. In such a case, the effect of sections 65(1) and 127(3) of the Act is that the agreement is not enforceable against the debtor.

33. In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under section 61 that all the terms should be in a single document, and backed up by the provisions of section 127 (3), 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. As a matter of policy, the lender is denied any room for manoeuvre in respect of them.

 

This is the reason MBNA will not take Court proceedings against me, they are acting in a malicious manner with the sole intent to cause as much damage to me as possible and because of Experians misguided belief that they are all powerful are open to a libel suit.

 

You are now in possession of all the facts as per the ICO advise and I state again if Experian ( YOU in Particular) continue to adopt your high and mighty intransigent stance and apply this proposed threatened default I will also sue YOU personally for libel.

 

Yours sincerely

 

 

 

Edited February 10, 2009 by Sparkie1723

[UK26]

well done, keep up the good work

[banker_rhymes_with]

Hello Sparkie!

 

Excellent.

 

Watching with keen interest, as I'll be after Experian soon...once I have thrashed things out with a few bankers first. Once that's done, I'll turn to have a good look at what Experian - and the other two - have been up to.

 

No good I should think, but I'm not looking at the moment, as it'll only make my face grow purple with rage. When I'm ready to enjoy a damned good rage, I'll send off the £2 fees and ask for my Debt Reports. Until then, it's just three less balls I need to juggle.

 

It's like my little prize at the end. Once I stagger out at the end of the banking battles, then I can start the fun and games with the reptiles at Experian.

 

That's assuming they are still in business once you and UK26 have finished with them. If you can, leave something for the rest of us! But, if not, it won't be a problem!

 

Cheers,

BRW

[Sparkie1723]

Thanks UK26 & BRW,

 

I am of course expecting some more excuses etc from Mr Lever but the more he says the more he puts his foot in it ( or should I say mouth), I've just given him all the facts, and I will sue for libel...they have to prove what they print is correct and the truth. Its a simple as that...As long as my claim is within 12 months they put the default on my file....as soon as they do I will apply for credit which I know will be refused then it will have been passed on to a third party.

sparkie

[Pab10]

Can't wait to see if Mr. Lever responds again!