Placing a default 2.5 years too late

[extrobe]

Hello caggers.

 

Been a little while away whilst I had a well earned Christmas Break, but am ready to get my last bits of profile cleaned up!

 

I only really have one item left, and it only shows on my Equifax report, but it's a funny one I think.

 

I did bring it up in a previous post, but feel it's worthy of a fresh one of its own.

 

Here we go:

- I take out a Hire Purchase agreement Jan 2006 for a Car

- I fail to make payments from July 2007

- Car returned to them a few months later

 

However, that’s where it all goes a bit messy;

- My credit report shows the failed payments between July & November 2007 – no issue there.

- My report shows as ‘Data Unavailable’ from December 07 – Feb 10.

- Then, in March 2010, they placed a default against this account – a full 2.5 years after first failing to pay (and some 2 years after the vehicle got taken back) (The attached image might make this clearer!)

 

I’ve not had any dealing relating to this since the car was returned (and perhaps naively, thought as I had returned the car, it was settled / closed)

 

So, I wanted some advice of the best approach for tackling this one.

 

As I understand it, if I do nothing, it will be on there until March 2016.

 

So, should I go down the standard ‘deny / prove it’ route, see where that gets me first

Or should I go straight in, point out that they are in breech of data protection laws by placing a default so late. In doing so, do I risk ‘acknowledging’ the debt, and therefore re-starting the stat-barred clock anyway?

 

I guess option number 3 would be to wait until 6 years after it *should* have shown as defaulted, and then tell them to remove it.

 

Any suggestions would be a big help

[silverfox1961]

Hi,

This should have been legitimately defaulted in Dec 07/Jan08 so I would be writing a formal complaint to them demanding they record it accurately. Failure to do so will result in complaints to the ICO. The ICO have made it clear that defaults should be placed in a 'timely manner' and certainly within 6 months of the first missed payment

[extrobe]

Thanks Silverfox - this is exactly what I want to do. I just worry that they will regard this as acknowledging the debt, therefore re-starting the sb clock (in which case I could still go down the prove it route, but could backfire)

 

Anyway you can think of of me wording it without acknowledging it?

[silverfox1961]

I would start any letter to them with, "I do not acknowledge any debt to you (nor any company you claim to represent(if it's with a DCA))"

 

Whenever posible when talking of the debt, include "alleged" i.e " You have placed a default against this alleged debt"

[extrobe]

Thanks Silverfox.

 

I have begun penning my letter to them. Would welcome any tips, and anything I can quote as a source for points [1] & [3] if you know any?

 

Dear Sir / Madam,

 

I write regarding a default your company has placed against my name on my Credit Report held with Equifax for an alleged debt.

 

I have no knowledge of this alleged debt to your company.

 

What is also of concern is that this default was added in April 2010. According to the Credit Report, this alleged debt fell into arrears in 2007, so doesn’t explain why a default was added over 2 years later.

 

The ICO has made it clear that:

- Any data held about someone must be correct and relevant [1]

- Should a default be made against someone, it must be in a timely manner (and never more than 6 months later) [2]

 

Test cases has have shown that damages of £1000 per inaccurate entry can be awarded where incorrect and defamatory data is recorded against someone. [3]

 

Failure to remove this entry from my file within 21 working days will result in a complaint to the ICO, and I will also strongly consider claiming damages against you.

 

I look forward to your reply

 

Yours truly,

 

 

extrobe

 

Sources:

[2] ICO – Data Protection Technical Guidance: Filling defaults with credit reference agencies – Section 11

 

“

Time framework

Although there will be some flexibility in the definition of a breakdown, we believe there should be general rules for the minimum period of arrears which should exist before a default can be filed. Equally there should be a maximum period after which, if anything is to be recorded with a credit reference agency, a default must be filed. The following are in line with the practices currently adopted by most lenders.

 

• Accounts should not be routinely filed as being in default where full payments or those due under a rescheduled agreement are fewer than three consecutive months in arrears.

• Accounts should normally be filed as being in default where those payments due have not been received for six months.

“

 

 

[The Debt Star]

Can I ask a hypothetical question related to this?

 

IF Extrobe had been paying reduced payments on this account to a DCA between 2007 - 2010 instead, and stopped paying those reduced repayments to the DCA in March 2010, would they be entitled to enter a Default dated March 2010?

[extrobe]

Can I ask a hypothetical question related to this?

 

IF Extrobe had been paying reduced payments on this account to a DCA between 2007 - 2010 instead, and stopped paying those reduced repayments to the DCA in March 2010, would they be entitled to enter a Default dated March 2010?

 

My understanding (not always right mind you!) is that yes, they could replace a pre-existing default with a fresh one.

 

But unless someone has been paying on my behalf (I should be so lucky!) then this shouldn't have any impact on this. Plus, I have a previous report from earlier last year and there is no default in sight relating to that account.

[silverfox1961]

Can I ask a hypothetical question related to this?

 

IF Extrobe had been paying reduced payments on this account to a DCA between 2007 - 2010 instead, and stopped paying those reduced repayments to the DCA in March 2010, would they be entitled to enter a Default dated March 2010?

 

Hypothetically, if more than token payments were being made, that would be recorded as 'arrangement to pay' however, if the creditor was accepting only token payments (eg-£1 per month) then a default is immediately placed.

I would think (but not absolutely sure) that if the debtor failed in an arrangement to pay then a default would be placed but should they backdate it to when full payments ceased, I'm not sure

[The Debt Star]

but should they backdate it to when full payments ceased, I'm not sure

 

Thats what I'd be interested to know. Seems royally unfair if they did enter an up-to-date Default for an account that broke down on 2007 imo, but, sadly, nothing is fair to the consumers it seems to me in these matters.

[extrobe]

Right, been a while, so a quick update / question...

 

I finally sent of my letter - more or less what I posted above, but with a couple of extra sources for bits.

 

They've written back asking for an extract of the relevant credit file showing this.

 

This is fine, and I have it - but wanted to check this wasn't some sneaky way of me admitting liability, giving them more ammo etc - or should I be ok?

 

Thanks!

[harrassed senior]

Tricky that as only you (apart from DCA's etc.) have access to those files. I would be more inclined to give them the name of the CRA who is registering this and tell them to look themselves! - then correct asap.

[The Debt Star]

watch out they don't conduct a full table 1 search on you though

[extrobe]

watch out they don't conduct a full table 1 search on you though

 

Is that a full on search that others will see?

can they do that / can I revoke their right to do so?

 

I've had DCA's scan my profile before, but only a soft search

[The Debt Star]

soft search is fine (Equifax call them Table 2 searches) and that is the only search they should do and need to do. But you know how these outfits operate and what I was concerned about was them making a Table 1 search which of course be damaging to you. I'm sure they won't. Just keep an eye on it and scream blue bloddy murder if they do!

[extrobe]

Thanks - I'll certainly keep an eye on it!

[The Debt Star]

I - reluctantly - pay them £6.99 p.m. to keep an eye on my report. I'm amazed at how often sneaky little changes come and go. When I can I'm cancelling the payments but, for now, its invaluable and money well spent policing the nasty little feckers that are trying it on with my data.

[extrobe]

Yeah, I pay Experian for this.

I think this company use Equifax - I used to pay monthly to them too, much they're sneaky over prices thieving gits, so cancelled it - will just have to get hold of my free report every so often with them!

 

(When you're subscribed, your profile indicates that it's a free service, which it's not, as you're already paying for it! grr!)

[Rayne]

Hypothetically, if more than token payments were being made, that would be recorded as 'arrangement to pay' however, if the creditor was accepting only token payments (eg-£1 per month) then a default is immediately placed.

I would think (but not absolutely sure) that if the debtor failed in an arrangement to pay then a default would be placed but should they backdate it to when full payments ceased, I'm not sure

 

So let me get my head round this, if you have made arrangements to pay, and ARE paying, not at the token rate of £1 pcm, but also less than what it would otherwise normally be, then there shouldn't be a default and it should show instead "arrangement" or similair?

[extrobe]

So let me get my head round this, if you have made arrangements to pay, and ARE paying, not at the token rate of £1 pcm, but also less than what it would otherwise normally be, then there shouldn't be a default and it should show instead "arrangement" or similair?

 

I could be wrong, but I think that if you had defaulted before making your arrangement to pay, then the default would still be recorded has happening, but be updated to show now arrange to pay (much like if you settle a defaulted account, the default still happened, and is still there)

If you didn't default, but went straight into arrangement to pay, then, well, you didn't default, so no default required on your account

 

Edit: OK, I wasn't quite right, but on the right track

[brokebutnotbeatn]

The account wil be in default and the lender is obliged to send you updates on the amount you are defaulting by. but they don't have to terminate the account and send you a default notice that goes on your credit file. However they can and do mark your file with AP (Arrangement to Pay). Out of 7 creditors I only have one DN and the rest are AP markers.

[The Debt Star]

AP markers are worse than a Default imo and to be avoided. My reasoning is from bitter personal experience. Defaults drop off the cred file after 6 years whether u still owe them anything or not. APs stay on for a s long as ur paying them and then for 6 years after that. Experian have confirmed this to me by email. An AP is seen as dodgy by lenders and credit apps will get bounced because of them. So, of the 2 (AP v Default) I'd choose the Default.

 

I did have an AP removed by one creditor and replaced with a Default (which comes off next year). Otherwise I'd have that AP forever. It was a tough fight but one I won in the end.

[brokebutnotbeatn]

Yes, I recall that thread. madness isn't it? However I'm in a DMP so stuffed re the defaults. Unless I negotiate that as part of a F&F towards the end????

[extrobe]

Right-O

 

so an mentioned, I've had a reply asking for an extract from my credit file.

Finally got round to getting my next letter written, but it's done now, and should be in tomorrow's post!

 

Here's what I've put...

 

Dear Ms. xxxx,

 

Thank you for your letter dated xx xxx 2011

 

In your letter, you request an extract of the relevant part of my credit reference file.

 

Please find enclosed a copy of the relevant part of my Equifax Credit Report

 

As per my previous letter (dated xx xxxl 2011), I do not recognise the content of this entry. This fact not withstanding, you will no doubt understand my concern that a default has been placed against the account some 27 months after the fact is said to have occurred – a clear breach of Data Protection Act.

 

Thank you for your time investigating this matter – I look forward to your response.

 

Yours Sincerely

 

me

 

[extrobe]

had my reply this week - they have changed it to 'December 2007' - right on the edge of the time period allowed, but a result none-the-less.

 

Now just wait for the inevitable dca letter!

[The Debt Star]

make sure you keep screen shots etc. wouldn't trust 'em not to change it again. have had probs with Brit Gas recently like that.

ok, well you know that it'll drop off for good at end of 2013.