Barclaycard & dodgy Mercers DN/Cabot ***WON - DEFAULT DATE CHANGED***

[vjohn82]

Ok... try to keep up chaps and lasses ;-)

 

Here's the default registered by Cabot... the name and d.o.b are wrong too... but that's a minor technicality...

 

 

Pertubed because I know for a fact I had nothing outstanding since 2004... why was a default being recorded in October 2008??? Had to do the natural CCA digging around... Cabot sent me this:

 

 

In court this will be as much use as Stevie Wonder's sunglasses... so I chanced my arm with the OC as Cabot had no other information to give to me... I needed to know why the default was being recorded from that date... SAR to Barclaycard which turned up this...

 

 

Oooohhh... June 2004... why are they recording a default well over a year after the event??? I sent in an email to Cabot for them to explain it...

 

Dear Sir/Madam,

 

Under the Data Protection Act 1998 Sch. 1 Part 1 it states:

 

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

 

The interpretation of this fact is in Part 1 which states:

"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."

 

In accordance with 7 (b) I am informing you, as the data subject, that you are recording inaccurate data.

 

I have attached to this email the following documents:

 

 

 

1) The Default Notice from Barclaycard

 

2) The default being recorded on my credit file with the highlighted errors in information

 

 

ERRORS:

 

Name

Date of Birth

Date of Default

 

 

You already have receipt of my identification documents detailing my name and date of birth. I have now attached the default notice which also proves the date of default being recorded is incorrect. Therefore this infromation is not being recorded accurately.

 

I received a final response letter from your company which did not address this area of my complaint. Therefore if the the record is not amended within the next 7 days I will be writing to the Information Commissioner to force you to comply as the data being recorded is not accurate and in contravention of the Data Protection Act. Please inform me of the steps you are going to take to address this matter.

Yours Faithfully,

 

I added this email to add additional details as in a previous email they had stated that no laws/legislation or documentation referred to the recording of defaults...

 

Dear Sir/Madam,

 

This is an addition to my complaint concerning the incorrect date of the default; this is taken directly from the Information Commissioners Data Protection Technical Guidance: Filing defaults with credit reference agencies (http://www.ico.gov.uk/upload/documents/library/data_protection/detailed_specialist_guides/default_tgn_version_v3%20%20doc.pdf)

I refer you to the following which make up the basis of my complaint:

 

1) pg. 13 paragraph 31:

"The date of default recorded on the file should be the date on which a decision to file a default becomes effective according to the criteria discussed in paragraphs 9 to 16. If a notice of intention to file a default is served (see paragraphs 32 to 37), the default date should be the date the notice becomes effective."

 

2) pg. 15 paragraph 39:

 

"Any default record should be accurate. We normally expect a lender to keep records that are necessary to show an agreement exists and to support filing a default. We would also expect a lender to be able to produce evidence to justify a default record they had placed on a credit reference file. Not having any supporting records may indicate a breach of the data protection principle requiring personal data to be adequate, relevant and not excessive for the purpose for which it is processed. A record that a notice of an intention to file a default was sent, if not a copy of the notice itself, will help lenders to comply with this requirement."

 

3) pg. 19 paragraph 53:

"If the purchaser agrees to take control of the record, the customer should be informed that the debt has been sold or assigned and to whom. The credit reference agency file should be changed to show the name of the purchaser and that the rights to the debt have been sold or assigned. The purchaser should then make sure the record is kept up to date including changes to the amount still owed. The purchase should not affect how long the record is kept."

 

If you have been assigned all rights and duties in accordance with section 189 of the Consumer Credit Act 1974 then it is most likely you will have taken responsibility for maintaing the record. This would seem to correlate with Cabot's name appearing on the default itself.

 

I trust this outlines the legal definitions regarding the recording of the default and how the Information Commissioner makes their judgements and I expect that the discrepancies highlighted should be amended before I enter into further correspondence relating to the debt itself. The account is in legal dispute and therefore no collection activity should be occurring at this time in accordance with the Office of Fair Trading Debt Collection Guidance.

 

As I have sent in this update I am offering 7 days for a full response to this issue before I submit a complaint to the relevant bodies.

 

Yours sincerely,

They decided to send me back this...

 

 

 

Hmmm... interesting points... especially about paragraph 9... so I produced this:

 

 

Oooppps... looks like the debt HAD been referred to an inhouse debt collector.

 

Game's up Cabot... do the decent thing eh?

 

Complaint now with the ICO pending response. Here's my complaint to them:

 

1. The default displayed in Document A is being recorded by Cabot from 12/10/2005 for account reference ########.

 

2. I wrote a complaint to the organisation concerned on 06/10/2009, Document B, which requested an amendment to the record as the default notice from the original creditor was dated 04/06/2004.

 

3. I sent a further email on 08/10/2009, Document C, in response to a telephone call where I was asked to clarify what regulations I was referring to.

 

4. The outline of my complaint is that Cabot are recording a default on my credit file for longer than is necessary and in contravention certain paragraphs of the Information Commissioners Guidance on Defaults.

 

5. I am specifically referring to the following:

 

pg. 13 paragraph 31:

 

The date of default recorded on the file should be the date on which a decision to file a default becomes effective according to the criteria discussed in paragraphs 9 to 16. If a notice of intention to file a default is served (see paragraphs 32 to 37), the default date should be the date the notice becomes effective.

 

pg. 15 paragraph 39:

 

Any default record should be accurate. We normally expect a lender to keep records that are necessary to show an agreement exists and to support filing a default. We would also expect a lender to be able to produce evidence to justify a default record they had placed on a credit reference file. Not having any supporting records may indicate a breach of the data protection principle requiring personal data to be adequate, relevant and not excessive for the purpose for which it is processed. A record that a notice of an intention to file a default was sent, if not a copy of the notice itself, will help lenders to comply with this requirement.

 

pg. 19 paragraph 53:

 

If the purchaser agrees to take control of the record, the customer should be informed that the debt has been sold or assigned and to whom. The credit reference agency file should be changed to show the name of the purchaser and that the rights to the debt have been sold or assigned. The purchaser should then make sure the record is kept up to date including changes to the amount still owed. The purchase should not affect how long the record is kept.

 

6. I have received a final response from Cabot dated 20/10/2009 (Document D1 and D2)

 

7. The final response states, in effect, that they will not be amending the default registered quoting paragraph 4 and 9 of the Data Protection Technical Guidance Filing defaults with credit reference agencies as their justification.

 

8. However, paragraphs 4 and 9 are under the banner General Approach and that by reading further into the document it contains important clarifications which I have highlighted above (paragraphs 31, 39 and 53).

 

9. I have attached a copy of the default notice from the original creditor Barclaycard in Document E1 and E2 which states quite clearly the breach concerned and the action proposed for non payment (recording the information with the Credit Reference Agencies).

 

10. I have also attached a letter from the in-house debt collection agency Mercers (Document F1 and F2).

 

11. Please note that in their response (Doc D1) they state that the relationship had not yet been broken down.

 

12. However in paragraph 10 of the Information Commissioners Guidance on Defaults, Indicators of a default, it states quite clearly that:

 

The following indicate that a breakdown has occurred in most types of product (excluding those in the section on Exceptions at paragraphs 12-15). This list is not necessarily exhaustive.

- The account has been referred to a collection agency or in-house debt collection department.

 

13. Therefore, clearly inferred from the ICO Guidance, the account was in default at this stage and cannot understand why Cabot are quoting paragraph 9 yet ignoring paragraph 10 which clearly contradicts their statement.

 

14. I have attempted to resolve this dispute with Cabot but their final response states that they will be continuing with the collections process without further addressing my concerns over the inaccuracy of the data being recorded.

 

15. It would be unreasonable for me to correspond further with Cabot to resolve any dispute with the account until the data being recorded is in accordance with Principle 4 of the Data Protection Act 1998.

 

16. I believe that by recording the default for longer than is necessary it puts me in an unfavourable situation with applications for credit in the future and limits my options. It may also subject me to a higher rate of APR or tie me to further restrictions which would not be merited based upon the data Cabot are recording.

17. I respectfully request the Information Commissioner to review the evidence contained within this complaint.

 

So there we have it... sent off... awaiting response from ICO!

[lilly white]

well well i did wonder what you have been up to.

 

i must say they go on about an agreedment what agreedment fools

[cashins]

You appear to have the same default bothe on Barclaycard paper ( SAR version?) and from Mercers.

 

Which one was actually sent to you?

 

David

[vjohn82]

well well i did wonder what you have been up to.

 

i must say they go on about an agreedment what agreedment fools

 

I've been really busy setting up a local advisory service for complaints against the local council but ended up helping some people out with debts in the end... going really well and keeping me busy. Will be doing my teaching degree next year but this will remain a hobby!

 

Anyway, I also have a court appearance for a CCJ set aside on the 9th November vs. HFO Service; should be interesting!!!

 

You appear to have the same default bothe on Barclaycard paper ( SAR version?) and from Mercers.

 

Which one was actually sent to you?

 

David

 

David - They both arrived in the SAR back in September... Mercers were the inhouse DCA for Barclaycard (whether they still are or not is not clear).

[PGH7447]

Mercers were the inhouse DCA for Barclaycard (whether they still are or not is not clear)

 

they are

[vjohn82]

Mercers were the inhouse DCA for Barclaycard (whether they still are or not is not clear)

 

they are

 

So paragraph 10 of the ICO guidance is pretty watertight then

[vjohn82]

Good news... should be considered a success as they decided to settle out of court for it!!!

 

After much wrangling with the legal departments of Cabot and Barclaycard it has been agreed that the default date was being recorded on the wrong date.

 

Barclaycard have been a big help considering they "discharged" their obligations to the debt. However, Cabot dug their heels in for 5 months!!!

 

I am receiving an apology in the post and the record will be updated ASAP.

 

It goes to show that if you fight hard and use your head you can achieve a result!

[lilly white]

well you say that, however i am sure lots of hard work went into it as well.

 

just keeping a watch.

 

lilly

[cashins]

I recently discovered I have a similar situation regarding defaults (2 years adrift) although in this case it is just Barclaycard themselves at fault.

 

Soooooooo, I've cribbed shamelessly from the info you have provided and rattled out a demanding that they correct the info. Let you know what happens.

 

Well done on your digging on this as I haven't come accross that guidance on defaults before.

 

David

[vjohn82]

I recently discovered I have a similar situation regarding defaults (2 years adrift) although in this case it is just Barclaycard themselves at fault.

 

Soooooooo, I've cribbed shamelessly from the info you have provided and rattled out a demanding that they correct the info. Let you know what happens.

 

Well done on your digging on this as I haven't come accross that guidance on defaults before.

 

David

 

No problem... if it helps you could possibly contact Jayne Egglestone at Barclaycard who made this all happen... it takes a bit of a fight but it's obviously worth it

 

Shamelessly snatch whatever you need!!!

[cashins]

Shamelessly snatch whatever you need!!!

:lol:

 

Thanks

 

david

[vjohn82]

:lol:

 

Thanks

 

david

 

If you have any trouble from it let me know... I have a few "contacts" ;-)

[ihatemybank]

EXCELLENT THREAD. A word to the wise... did Barclaycard's computers break down that year? my default was registerd coincidentally on exactly the same alleged date.. 12/10/2005? I dont have a copy of the default notice but I stopped paying the account in December 04

[ihatemybank]

How will I prove the relationship broke down before then SAR?

[vjohn82]

EXCELLENT THREAD. A word to the wise... did Barclaycard's computers break down that year? my default was registerd coincidentally on exactly the same alleged date.. 12/10/2005? I dont have a copy of the default notice but I stopped paying the account in December 04

 

They claim there was a late registration of defaults but after speaking to the right people and using the ICO guidance it was quickly established that they were talking pish.

 

How will I prove the relationship broke down before then SAR?

 

Pretty much how I did really... I think using statements is a good way to go too!

[vjohn82]

It has also been revealed today that Cabot gave me the wrong "last payment/acknowledgement" date.

 

They claimed it was 23/11/2003... but Barclaycard revealed it was 11/03/2003.

 

This means when I was contacted at the start of March by Cabot it was a last ditch fishing exercise to see if they could "extort" the money out of me.

 

I queried the entire debt and they changed the last payment date to make it seem like they could collect the debt without being in breach of the Limitations Act.

 

Double whammy dealt to Cabot... all with amazing assistance from the OC, Barclaycard.

 

[volvo]

subbing

[ihatemybank]

It has also been revealed today that Cabot gave me the wrong "last payment/acknowledgement" date.

 

They claimed it was 23/11/2003... but Barclaycard revealed it was 11/03/2003.

 

This means when I was contacted at the start of March by Cabot it was a last ditch fishing exercise to see if they could "extort" the money out of me.

 

I queried the entire debt and they changed the last payment date to make it seem like they could collect the debt without being in breach of the Limitations Act.

 

Double whammy dealt to Cabot... all with amazing assistance from the OC, Barclaycard.

 

 

Is it when the last payment date was or the date of the default notice? Does anybody have any guidance to this effect?

[vjohn82]

The Limitations Act 1980 and subsequent case law states that it is the last date of cause of action from the debtor.

 

That means a payment instigated by you (card/cash/cheque payment, standing order) - direct debit does not count

 

OR

 

The date you last acknowledged to the creditor that you owe the money... i.e. you ask for a reduced payment plan / make a final settlement offer etc.

 

Hope this helps?

[vjohn82]

Here is my POC for the Claim Form... comments welcome ;-)

 

1. The Defendant is recording data on my credit file, which the Defendant claims to have been purchased from the original creditor (Barclaycard) in October 2006, under reference number 1557271.

 

 

2. The data is classified as a “default” and appears on public files held by the 3 major credit reference agencies (Experian, Equifax and CallCredit).

 

3. The Defendant claims that the alleged default occurred on 12/10/2005, as recorded on the Claimant's credit reference files, with no satisfactory explanation received from the Defendant as to how this date was calculated.

 

4. Barclaycard have confirmed in writing that the Default occurred in March 2003 and that the data processing on my credit file should have ended in December 2003. The original creditor also informed me that the Defendant was instructed amend the date and thus remove the default but on 03/01/2010 the Defendant continued to actively maintain the record.

 

5. It is averred the Defendant’s recording of my personal data is unwarranted in this regard and excessive as per the Data Protection Act principles 3, 4 and 5.

 

6. I have been in dispute with the Defendant since the 19th June 2009 after issuing a section 10 Notice for them to remove data which was causing damage to my credit reputation. The Defendant is fully aware of the content of that complaint.

 

7. I have suffered damage, namely:

 

a) Damage to credit reputation as a result of the default placed on the Claimant's credit reference file with the 3 CRAs.

b) Refusal of credit facilities due to adverse credit information.

 

8. The Claimant respectfully seeks:

 

a) Rectification, blocking, erasure or destruction of the inaccurate data, which the Court can order under s.14 Data Protection Act 1998 – including details passed to the CRAs;

 

b) The Defendant to remove all of my personal details from their databases;

 

c) Compensation under s.13 of the Data Protection Act 1998 for damage to credit reputation;

 

d) Restitution for damage to credit reputation. The amount of £1,000.00 was claimed recently as per Kpohraror v Woolwich Building Society [1996] 4 All ER 119. I believe however that the contravention constitutes £250 to be a fair approximation of the level of damage caused and inconvenience and this is the figure claimed as per the Letter before Action sent to the Defendant on 02/01/10;

 

e) The court orders that the Defendant pays the Claimant’s costs in these proceedings.

 

9. I believe that the facts stated in these particulars of claim are true.

[ihatemybank]

Looks good to me. Do you think I could use similar POC for a Default not being removed upon reassignment of debt to third party?

 

Barclaycard failed to remove a default when it was passed over and as a result 2 defaults (for the same debt) were present during the processing of a mortgage application. They have since removed the default but they refuse to acknowledge that this has caused me financial loss. Do I have to prove actual loss? I told them that it has resulted in the possibility of being offered more expensive mortgage deals?

 

I asked for a 1000 pound. They say unless I can prove it was a direct result they will not pay anything. Does anyone know the law surrounding this? Should I start a new thread?

 

Regards,

 

IHMB

[nturkes]

The Limitations Act 1980 and subsequent case law states that it is the last date of cause of action from the debtor.

 

That means a payment instigated by you (card/cash/cheque payment, standing order) - direct debit does not count

 

OR

 

The date you last acknowledged to the creditor that you owe the money... i.e. you ask for a reduced payment plan / make a final settlement offer etc.

 

Hope this helps?

 

So if you've never paid by any other means than a Direct Debit, and have never acknowledged to the creditor that you owe money, you're untouchable??! Sounds good to me.

[vjohn82]

So if you've never paid by any other means than a Direct Debit, and have never acknowledged to the creditor that you owe money, you're untouchable??! Sounds good to me.

 

Ermmm... I mean by any method of cleared payment. A payment cannot be made on a debt unless that payment clears. Even paying £5 to a shop does not mean the payment has "cleared" - the declaration on all bank notes states that the " I (Bank of England) promise to pay the bearer on demand the sum of £5".

 

So when a direct debit leaves your account it needs to undergoe tests by the creditor to ensure the payment can be cleared - if you have no funds in the bank and there is no facility to cover that payment then your bank can return it. Therefore it can never be a cleared payment.

 

If you pay by standing order, and have a sufficient overdraft or funds to pay, then this would ultimately end up a cleared payment to.

 

A standing order is an "offer to pay" the same as a credit card/debit card/sterling.

 

A direct debit is authorisaton for a creditor (or other person) to "request" you pay a sum. It is not a cleared payment until the transaction has been completed.

 

Does this make sense?

[vjohn82]

Looks good to me. Do you think I could use similar POC for a Default not being removed upon reassignment of debt to third party?

 

I asked for a 1000 pound. They say unless I can prove it was a direct result they will not pay anything. Does anyone know the law surrounding this? Should I start a new thread?

 

Regards,

 

IHMB

 

You can prove some sort of loss if you can demonstrate that there was another offer you were turned down for.

 

I have been turned down for car finance and told it was because of "adverse information" on my file. This is sufficient proof of damage because a company will have looked at information reagarding my credit worthiness and more than likely to have taken into account the data recorded by Cabot that should not be there.

[vjohn82]

Cabot have confirmed they will be making the appropriate steps to remove the default from the record entirely.

 

They have also confirmed that they will be investigating the statute barred issue.

 

Will keep you all updated on this one... but I suspect it has been down to my dogged nature, hounding them at every opportunity and not giving up which has won the day... I think they are just sick and tired of me now.

 

Anyway... they have until the 29th to carry out my requests or the court claim will be going in. I have given them enough opportunities to get their crap in order.

 

Like I said, will keep you all updated.