Dodgy Default Removal

[GerryPerry]

Allocation Questionnaire now sent, with Draft Directions.

 

Bring it on....

[GerryPerry]

Hmmm. A month later. No court date yet.

[GerryPerry]

Did any of you read this....

 

Mistaken identity debt case payout

 

 

 

BBC NEWS | Programmes | Moneybox | Mistaken identity debt case payout

 

A lot more payout there £6,700

 

How do you get access to the judgement - see what the judge has said influenced the payout

[GerryPerry]

Mistaken identity debt case payout

 

 

By Bob Howard

BBC Radio 4's Money Box

 

A man wrongly identified as owing a debt has received a payout of thousands of pounds from the debt collection agency concerned.

Dr Mike Thompson received a payout of over £6,000

 

Dr Mike Thompson was contacted in August 2007 by debt collection firm Aktiv Kapital which was seeking £640 it said he owed to a finance company.

Dr Thompson knew the debt did not belong with him and he had never heard of the finance company involved.

When Aktiv Kapital threatened court action to recover the money, Mike told the firm it had got the wrong Mike Thompson and that it should produce evidence of the debt.

In January, he believed he had finally convinced the firm he was not the person they were seeking.

But then he discovered the firm had placed a default on his credit record.

He told BBC Radio 4's Money Box: "I was obviously outraged but at that time I had a very good firm of solicitors acting on my behalf."

"I was informed that was the point at which we could take legal action in the High Court."

Reputation

Mike's solicitor told Aktiv Kapital that unless it paid damages and apologised, there were grounds for him to consider suing for defamation.

That was because details of the debt Mike did not owe could now be accessed by any finance company checking his credit record, adversely affecting his reputation.

After weeks of negotiations, Aktiv Kapital paid him £6,725 in damages and costs and issued a public apology, published in the London Gazette.

It said: "Aktiv Kapital (UK) Limited now accepts that Dr Thompson has neither been indebted to, nor defaulted on any account with Aktiv Kapital (UK) Limited."

The claimant would have to show the company had been reckless

 

 

Sarah Webb, solicitor

 

 

Send us your experiences

 

"Aktiv Kapital (UK) Limited wishes to express its regret to Dr Thompson for this error, and apologises unreservedly to Dr Thompson for any embarrassment and inconvenience which may have been caused to him."

Sarah Webb, head of media and defamation at Russell Jones & Walker Solicitors, believes a claimant like Mike would have been in a strong position if the case had gone to court.

However, to succeed he would have to overcome significant legal protection known as "qualified privilege" given to the firms involved.

Ms Webb told the programme: "The claimant would have to show the company had been reckless in passing on the wrong name, that they'd got the wrong person."

To win, claimants would also have to be prepared to overcome financial hurdles as well.

Dr Thompson's solicitor, Simon Cook, a partner at law firm Ormerods, says anyone not on a high income might struggle to fund their case.

"You can't get legal aid for defamation. Most people can't afford the costs of the proceedings. Even if he'd won, he wouldn't have necessarily received all of his costs," he said.

Sufficient safeguards

The two credit reference firms contacted by Money Box - Experian and Equifax - said they were happy with their existing procedures for making sure data entries are accurate.

James Jones from Experian believes his company already has sufficient safeguards in place.

"We test the data before it's added to credit reports, we monitor the data on an ongoing basis and report any discrepancies back to the organisation," he said.

There's a certain amount of scepticism at the start

 

 

Kurt Obermaier, Credit Services Association

 

"We also monitor the things that consumers are querying with us."

The Credit Services Association, which acts as the trade body for the debt collection industry, has recently issued new guidelines to companies attempting to trace people.

It admits occasional mistakes are made by members trying to identify people who owe debts but denies this happens on a regular basis.

Kurt Obermaier, the association's executive director, said his members have a difficult task but take complaints seriously.

"The very essence of our industry is to deal with people who say 'that's not me' or 'I don't owe this money', so there's a certain amount of scepticism at the start," he said.

"If you continue getting collection letters, they are required to have a proper complaints procedure and you can complain to the chief executive."

[GerryPerry]

Just got a General Form of Judgment or Order from the Court. It's a bit unusual in what they want to do next.

 

Car2403 - may need your help with understanding what it means and how I should proceed. Don't want to spill the beans here yet....

 

Cheers

 

Gerry

[car2403]

You can PM me or email to car2403 (at) consumeractiongroup.co.uk...

[Dipply75]

Hi Gerryperry, subbing with great interest. Any updates on this one yet?

 

Good news I hope

[GerryPerry]

The Court has asked for a meeting to discuss Case Management with me and their lawyers next month. I'll know more then. It's annoying that it's taking so long, but they are going to lose in the end. The end game approaches.....

 

Cheers GP

[Jules55]

All the best Gerry, keep us posted on these highwaymen **EDITED** consumers.

 

Can you claim credit card late payment charges after you have settled a credit card account in full & final settlement even though only 35p in the £ was agreed and the account marked satisfied on the credit file?

Edited July 20, 2009 by car2403
Potentially libellous comments

[GerryPerry]

Jules - I don't know if you can make a further claim. I suppose it depends on the wording of the settlement. Not sure what would happen if you started correspondence with them trying to claim - my guess is that they woudl rebuff like they normally do, and you'll end up spending £65 to take them to Court, Depends how much they've ripped you off for.

 

There maybe bright legal eagles here who could advise, but I would have thought that a settlement forces you to agree to something that wasn't perhaps legal in the first place (eg the ridiculous charges) is an unfair contract, but if you pursue that line, maybe the settlement will undo, and maybe that's not to your advantage. I'd look at the total charges and the settlement figure, if the charges are bigger, its worth digging further into I suspect.

 

However, some CAGGERS have successfully challenged the whole debt on the basis of the unfair charges.....

[Dipply75]

Hi GerryPerry, looks like I will be following your lead next. RBS sent me a default notice which even they admitted was useless, sent another which was posted on 30th June stating a date to pay of 15th July - so not time left for service there.

 

They then send me a letter dated the 13th July telling me I had failed to comply with the default and were demanding full loan amount and closing accounts....well wonky calendars the RBS use

 

So, best of luck to you, any comments on mine, especially the letter I am sending (kin've uncharted territory for me lol) would be most welcome:

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/207374-rbs-defaulting-me-no.html

[GerryPerry]

Okay. So, here we go. Court date is to be set sometime in the next few days/weeks. I suppose I need to work on my Court Bundle. I'm presuming that the defence won't just say they were wrong - hell they've got fees to earn from the bank...who knows...but best prepare to do battle.

[GerryPerry]

Got my letter from the Court yesterday setting time and directions. On Small claims track - hurrah! Will all be over by the end of next month. Preparing my court pack. More details to follow....

[jon_boy75]

Got my letter from the Court yesterday setting time and directions. On Small claims track - hurrah! Will all be over by the end of next month. Preparing my court pack. More details to follow....

 

Good luck Gerry

I'm following closely as I am close behind you with a similar case, except that I had a current account (no disputing that), but was defaulted without any notification from Abbey. Only found out this year!

Account long since closed and settled.

I await more news with interest!

[GerryPerry]

Well - got a copy of their defence last Thursday. Some highlights:

 

- denied everything that I claimed

- Finally furnished me with what looks like the back page of the Agreement (but who knows if it really is - perhaps they'll turn up with the original).

- Finally gave me what looks like a copy of a default letter template.

- So forget SAR requests, you only get the data you know they have if you sue?

 

I don't think what they've defended with changes anything, but the defence challenges some very interesting points of law that I really need to be sure about.

 

I can't afford to be complacent. I must win this case.

[GerryPerry]

Jon Boy

 

have you checked out this Thread - it looks similar to your situation.

 

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/192562-how-challenge-default-notice.html#post2246787

 

 

 

Cheers GP

Edited September 3, 2009 by GerryPerry

[car2403]

Will you be posting the Defence, GP?

[GerryPerry]

Chris

 

I'm a bit concerned about the defence reading these posts.

 

However, since they know what my POC are, and they know their defence, I can't see how it will do any harm.

 

All Caggers reading this post please note: What I need to ensure is that between now and the court case, which is within the month, any advise I get on here is in the form of Private Messages - that way they don't get prior warning. I'd love to read your PMs if you have anything to help.

 

I think following the case, win or lose, I think my lessons will be valuable to all and I will post all I have.

 

I am very nervous at this stage, my confidence has wained somewhat.

 

I'll be able to post this eve when I'm back at home.

 

Cheers

 

GP

 

 

[car2403]

I, personally, would warn against use of PM in this instance. Reasons being are that you could be given incorrect advice, intentionally or by accident, and the forum members won't get the chance to correct it if we can't see it. Also bear in mind that personal information shouldn't be shared, on forum or by PM, as that can lead to allsorts of things you really want to avoid.

 

I've replied to your email, GP (Hopefully, site team members can be trusted - although I have my doubts about some of them )

[GerryPerry]

Car2403 has a point about advice in PMs. It's the weekend, so I have more time to upload the POC and defence - if I can figure how to do it out!

 

Cheers all

 

GP

[GerryPerry]

So here's my POC

 

------------------------------

1. I, the Claimant in this case, am a litigant in person and I make this particulars of claim statement from my own knowledge and experience.

2. The Claimant held a Credit Card with the Defendant between xxxxxxxxx and xxxxxxxx, numbered xxxxxxxxxxxx(the Account) in which it is purported by the Defendant that a Default notice under Part VII of the Consumer Credit Act 1974 (the Act) and subsequent amendments (Default) was served on the Claimant xxxxx May 2007.

3. The Claimant argues that the default was not properly processed by the defendant as defined by the Act resulting in one of the failed processes being that the Default letter was not actually processed or posted at the time claimed, and furthermore argues that the Claimant first became aware that the Account was in Default following a telephone conversation instigated by the Claimant with the Defendant in February 2008.

4. During this telephone conversation, the Defendant claimed that the written notification of Default was sent on xxxx May 2007, and the Account was recorded as a Default Account with the Defendant and Credit Reference Agencies on xxx December 2007.

5. Until the point of this the telephone conversation in 4 above, the Claimant had received no correspondence or calls from the Defendant claiming that the Account was in Default, nor any claims for the Account to be repaid in full as a consequence of the Default.

6. On discovering the alleged Default, the Claimant made arrangement to settle the Account in full, and all monies owing on the Account were deposited on xx March 2008.

7. The Claimant having audited the three major Credit Reference Agencies discovered that a Default was recorded against the Account on the xx December by the Defendant.

8. On the xx July 2008, the Claimant made a Data Subject Access Request under Section 7 of the Data Protection Act 1984.

9. The Defendant responded on 2xx July with a document marked “Without Prejudice”.

10. The “Without Prejudice” response described in 9. above to the Data Subject Access Request was clearly incomplete, and the Claimant made further Data Subject Access Requests due to not receiving all the required information or not receiving a response from the Defendant:

a) on the xx August 2008

b) on the xx September 2008

c) on the xx October 2008

d) on the 2x October 2008

e) on the xx October 2008

f) on the xx November 2008

g) on the xx November 2008

h) on the xx January 2009.

 

11. The Defendant has failed to reply to this legal Data Subject Access request within the prescribed period of 40 days. The Claimant wrote to the Defendant on xx November 2007 outlining this failure. The Claimant issued a complaint to the Information Commissioner’s Office, (ICO) due to the Defendant’s non-compliance with it’s obligations under the Data Protection Act. In particular, the Defendant has not supplied a copy of the Default correspondence, nor any decision logic as is required under the Act.

12. The Claimant argues that there is no agreement with the Defendant as the agreement is not properly executed as defined by Part V of the Consumer Credit Act, which would also make the recording of a Default false:

a) there is no date against the Claimant’s signature on the application form

b) there is no statement of Terms and Conditions, particularly dealing with Default, in the application form to define a contract or agreement as required by the Act

c) the Date of Agreement as completed by the Defendant is clearly defined as 21 September 2004, whereas a transfer of money to the Account took place on the 2 September 2004.

13. The claimant further argues that:

a) the Default was not properly executed as defined by the Part VII of Consumer Credit Act 1974, in particular s.87 s.88 and s.89

b) in the application form, there is explicit section detailed “Important – Use of Your Information” which states that “We will never release your Personal Details to any company outside John Lewis Partnership..” and also does not explicitly state that the Claimant’s Personal Details can be released to third parties for other uses, and therefore the Claimant has not given consent to use of Personal Data for this purpose, which is contrary to the Claimants rights as provided by the Data Protection Act 1988.

 

14. Failure of a Default to be accurate invalidates the Default (Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998) and is also an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give the Claimant a claim for damages. (Kpohraror v Woolwich Building Society [1996] 4 All ER 119)

 

15. The Claimant contests that the Defendant’s continued processing of his data is an unwarranted act and that the Defendant has failed to comply with a Statutory Notice pursuant to s.10 and s.12 of the Data Protection Act 1998.

16. The Claimants written permission allowing the Defendant to continue processing, or disclosing, personal subject data, does not exist. The Claimant also disputes the Defendants “Defaulting” of the accounts, which is visible on his Credit Reference files, for the reasons outlined above. The Claimant, therefore, considers any Default appearing on any Credit Reference Files in relation to these alleged agreements to be wholly unwarranted and unlawful.

 

17. The Claimant is afforded principled rights under the DPA 1998, Schedule 1, Part 1 ("The Principles") in relation to the manner in which data is collated, stored and processed. Of particular note, are Principles 3, 4 and 5:

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

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

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

18. In this case, the Defendant is processing data without consent. Consent in this case meaning the lawful right to process data, with permission, with the Credit Reference Agencies – that information being “publicly available”.

19. The claimant asserts therefore that this Default amounts to a material breach of the fourth Principle of The Data Protection Act 1998.

20. The Claimant, therefore, commences proceedings against the Defendant for the removal of the Default information:

a) as there is no properly executed agreement, there can be no Default to the Agreement

b) under the Data Protection Act 1998 for processing data to third parties without consent,

c) under the Consumer Credit Act for not following procedures relating to service and execution of the Default.

 

21. The Claimant rights are confirmed in Principle 2 of the Data Protection Act, which states:

 

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

22. The Claimant argues, therefore, that due to the non-agreed disclosure of personal data to third parties by the Defendant, without express written permission from the Claimant, that the Defendant has committed a criminal offence under s.35 DPA 1998.

 

23. The recording of “Default” information by the Defendant, without consent, against a credit file without having a consent, or any processing by the Defendant of that data, in any manner, which would be unfair or inaccurate or which in any way, would breach The Data Protection Act 1998.

 

24. The Claimant requires that the Defendant cease from processing such data, or else that the Defendant does not begin to process any personal data of which the Claimant is subject insofar as that processing involves the communication or passing of personal data of which the Claimant is the subject to any third party and insofar as the said data relates wholly or in part to the implementation by the Defendant of alleged defaults or contractual breaches, or breaches contrary to The Common Law.

 

25. The Claimant argues that the processing or continued processing by the Defendant of the Claimant’s Personal Data will affect the Claimants credit rating and reputation and cause substantial damage and/or substantial distress to the Claimant and other family members in addition to that which has been caused to date. And that as the processing of the said data in the way referred to in this Claim would violate both the Principles and Data Subject’s rights of The Data Protection Act 1998, to do so would be both unwarranted and unlawful.

 

26. Additionally, the claimant requests an order from the Court under s.14(1) and s.14(3) of The Data Protection Act 1998 for the removal of the Default notices and any other prejudicial information from all credit reference agencies and all third parties;

“14. - (1) If a court is satisfied on the application of a data subject that personal data of which the applicant is the subject are inaccurate, the court may order the data controller to rectify, block, erase or destroy those data and any other personal data in respect of which he is the data controller and which contain an expression of opinion which appears to the court to be based on the inaccurate data.

 

14. – (3) Where the court—

(a) makes an order under subsection (1), or

(b) is satisfied on the application of a data subject that personal data of which he was the data subject and which have been rectified, blocked, erased or destroyed were inaccurate,

it may, where it considers it reasonably practicable, order the data controller to notify third parties to whom the data have been disclosed of the rectification, blocking, erasure or destruction.”

27. The Claimant further claims the Court fee of £65.

28. The Claimant therefore claims against the Defendant in the terms outlined in these particulars of claim and seeks;

28.1. An order from the Court under s.14(1) and s.14(3) of the Data Protection Act 1998 for the removal of the Default information and any other prejudicial information from all credit reference agencies;

28.2. Costs, at the discretion of the Court

 

Statement of truth;

I, the Claimant, believe all facts stated to be true.

Signed,

 

 

having some probs removing the personal stuff!

Edited September 4, 2009 by GerryPerry
eeek cut and paste error!

[GerryPerry]

Edited September 4, 2009 by GerryPerry

[GerryPerry]

Here's the first page defense...

 

 

Edited September 5, 2009 by GerryPerry

[GerryPerry]

Edited September 5, 2009 by GerryPerry

[GerryPerry]

Edited September 5, 2009 by GerryPerry