Barclaycard and Credit File Submissions

[rmb282]

Hi,

 

This is my first post. I hope you guys and dolls can help.

 

Six years ago, I entered into an IVA as I had big debts I could not manage, I had several defaults but no CCJ's, however, as it were six years ago all but one default have dropped off my credit file.

 

The main problem comes with Barclaycard, they did not serve defaults, and even though they were included in the IVA, they still submitted late payment details to the Credit Reference Agencies, only when the IVA was completed in May 2003 did they submit it as being satisfied.

 

All other credit card/loans etc referenced either April 2000 (the date of the IVA) or the default date as the closure of account date. Hence next month all evidence of defaults and IVA will expire from the credit file, All apart from Barclaycard, this may stay on my file until 2009, surely this cannot be legal.

 

I have spoken to them and written to them asking when this information is going to either be corrected or deleted. Verbally I was told this year, but I do not have anything in writing.

 

Please assist, or guide me in the right direction.

 

Many thanks,

 

rmb282

[BankFodder]

Very interesting problem.

 

I can tell you that over the next few months we will be challenging the default system and the right of any institution to make entreis in it on their own account and without any system of scrutiny or monitoring.

 

I understand from you that BCard submitted their credit record entry rather later than the others but I'm sorry but I don't quite undersatnd why from your posts. Could you clarify this please.

It seems to me that they did not in 2000 say that there was any problem, only that in 2003 they made an entry that now everything was OK. Is this correct?

 

When they told you verbally that the entry would be deleted, I imagine that this was on the phoine. Did they call you or did you call them? Do you have a name of the person you spoke with? Do you have any notes including the precise date and time of the conversation?

[mcuth]

Hi rmb282

 

If the Barclaycard debt was included in the IVA, then I believe it should be marked as default from the date that the IVA was agreed. Also see this Information Commissioner leaflet, which helpfully states:

 

Individual voluntary arrangement (IVA)

This may stay on your credit reference file for 6 years from the date of the arrangement (even if your IVA has been completed). If your IVA lasts longer than 6 years, it will remain on your credit reference file for the length of the arrangement.

If your IVA has been completed, you may need to send proof to the credit reference agencies.

If you need help with your IVA, you should contact your Insolvency Practitioner or get independent advice.

 

Rather than talk about this with Barclaycard, I'd be more inclined to get your credit files from Experian/Equifax/Callcredit (the Credit Reference Agencies) and then query the late payment record with Experian/Equifax/Callcredit. It'd be helpful if you provided them with some evidence it was included in the IVA, when the IVA was agreed & settled. Unfortunately, some companies will only really take action when there's some outside pressure involved.

 

HTH

 

Cheers

 

Michael

[BankFodder]

Good advice from mcuth but I was wondering about something a bit more direct and nasty.

 

I am quite sure that there is an implied contractual term that information given to 3rd parties is accurate and just or that it will be entered in accordance with the rules..

If mcuth is right about when the entry must be made then the Bank may have breached this term.

 

I would want to suggest the possiblity of a small claims action for the breach for an unliquidated sum not exceeding, say £4000.

 

I would also then suggest that when the claim is commenced that Equifax and Experian be informed of it and warned that if there is a successful outcome that you will be approaching them about their defamatory entries.

This is only an outline of a plan so far. We would need to understand a bit more and also what damage have you suffered by the continuing entry on the register?

 

However, I think that a claim such as this would be pretty risk free and could produce quite spectacular results.

[rmb282]

Thank you, I have contacted both Equifax & Experian and stated that the barclaycard debt was included, provided proof of this as well as the certificate of completion, I have also got another gripe with equifax as they record the completion of the IVA in as a 'Notice of Correction' and I am led to believe that having these on your credit files stop automated credit checks and start the manual ones which have a detremental effect when trying to get credit. I hadn't even thought of persuing a compensation claim, I might be tempted, as this certainly has had an effect on me not being able to get credit.

[rmb282]

Bankfodder,

 

To give you more accurate information or to clarify,

 

Back in Nov/Dec 1999, I was deep in debt and could not manage the repayments etc etc..., and as Barclays Bank could not help me further, I went into an IVA which started in April 2000

 

I had several defaults ranging from Nov/Dec 1999 through to July 2000; all of which were included within the IVA.

 

Problem No. 1

All but 1 default have expired from my credit file, this being Black Horse Finance as they issued a default in July 2000 even though the IVA (which included their debt) was dated April 2000, not sure whether this is legal? Technically, they closed the account on 31st July 2000; even though, as I understand it, I effectively closed it by entering into an IVA dated April 2000.

 

 

The IVA will expire from my credit file at the end of April 2006; however;

 

Problem No 2

As Barclaycard (as it seems) did not issue defaults, and even though their debt was included in the IVA, they kept reporting in the account history to the credit agencies that I was late paying, right up to May 2003; which is when I did a full and final payment to complete the IVA. Again, effectively closing the account, despite that their debt was included in the IVA dated April 2000. (So I have a 36+ months of over 3 months late) which I do not believe should be reported this way. As I was making payments to my IVA during this time, and again, by entering into the IVA, I closed the account.

 

Problem No 3

When completing the IVA, Equifax did not update their 'Public Record or Court Information' section, as Experian and Callcredit do; they entered the completion of the IVA in as a 'Notice of Correction'; this unfortunately has the effect of stopping any automatic credit checks carried out by banks etc... and therefore you get a reply saying, along the lines of, "we will need to verify the information manually and will let you know by letter whether you have been successful in obtaining credit..blah blah blah....."

 

This means that I still cannot open a standard bank account, such as HSBC etc, I do have a basic account with the Halifax and I can't even upgrade my account to a standard one, despite paying in my net salary of almost £2k/month.

 

 

I hope that the above is a better description of my problem. And I hope that you or any others can assist in helping me correct these problems, I would also be most appreciated if you could draft a letter or give me pointers as to what to write when persuing this issue with Barclaycard.

 

Many thanks,

 

rmb282

[mcuth]

Problem No. 1

All but 1 default have expired from my credit file, this being Black Horse Finance as they issued a default in July 2000 even though the IVA (which included their debt) was dated April 2000, not sure whether this is legal?

 

This is quite clearly wrong - you can't default on an account after an IVA has commenced (which naturally implies that the account is closed/defaulted anyway)!

 

Problem No 2

As Barclaycard (as it seems) did not issue defaults, and even though their debt was included in the IVA, they kept reporting in the account history to the credit agencies that I was late paying, right up to May 2003; which is when I did a full and final payment to complete the IVA. Again, effectively closing the account, despite that their debt was included in the IVA dated April 2000.

 

Again, this has to be wrong - you can't "late pay" an account after an IVA has commenced. Any late payments under an IVA would surely start the wheels of bankruptcy proceedings?

 

Problem No 3

When completing the IVA, Equifax did not update their 'Public Record or Court Information' section, as Experian and Callcredit do; they entered the completion of the IVA in as a 'Notice of Correction'

 

Ack, don't you just hate CRAs? Equifax are very much in the wrong here - if there's an entry for an IVA, they must mark it as completed/satisfied (like they have to do for defaults/CCJs when they're satisfied too). The Fourth Data Protection Principle requires that personal data is accurate - clearly the Equifax info isn't if they haven't marked the IVA as satisfied.

 

I'm really not sure just what legal steps you can take about any loss due to incorrect information, but, you may be able to get the Information Commissioner involved (though they won't be able to issue compensation, etc...).

 

Have a look at this leaflet. I know it talks about bankruptcy, but since an IVA is a legally binding agreement and is a "less formal" type of bankruptcy, I think the principles involved should still apply. Make sure that you explain that you've contacted both the CRAs & lenders involved, but they've either refused to budge, or flat out recorded the wrong information. Whether it's the CRAs or the lenders that are recording incorrect information, I'd say one or the other (or even both!) have committed some sort of DPA breach.

 

Oh, BTW, somewhere you might get some more information from is the Debt Questions Forum, in the IVA section.

 

HTH

 

Cheers

 

Michael

[BankFodder]

mcuth

 

Very intersting analytical repsonse you have provided here. Are you able to let us have the source for these rules, please.

[mcuth]

Hi BF

 

Well, I'll do the best I can....

 

Most of it's taken from this leaflet. Like I say, it refers to the IC FAQs about bankruptcy - as an IVA is a "lesser form" of bankruptcy, I think the same principles should apply, especially since it's a legally binding agreement.

 

Problem #1: Default date issued after IVA start

 

From this leaflet:

I’ve noticed that an account that was included in my bankruptcy is marked in default later than my bankruptcy. Can I do anything to

change it?

Sometimes a lender will not know the exact date you were made bankrupt. This may mean that when the lender registers a default with the credit reference agencies, the date on the default is later than the date on your Bankruptcy Order.

If a particular debt is included in the Statement of Affairs at the time of the bankruptcy, you can ask the lender to change the date of the default to the date on your Bankruptcy Order. To do this, you should write to the lender and ask them to change the default date to the date of the Bankruptcy Order. Remember to send the lender a copy of your Bankruptcy Order or other documentation which confirms the date you were declared bankrupt.

If the lender refuses to change the date of the default then you can write to us at: Information Commissioner, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF. You will need to send us a copy of the Bankruptcy Order/ documentation that confirms the date you were made bankrupt, proof that the debt in question was included in your bankruptcy and a copy of the lender’s letter which says it won’t change the date of the default.

 

Problem #2: "Late payments" marked on CRF after IVA start

 

If any of the terms of the IVA are broken, then the IVA fails and bankruptcy can be applied for. I'd imagine that "late payments" would fall under that if the creditor was included in the IVA.

 

From here:

What happens if I don't keep up the payments on my IVA?

If you default on your payments, the supervisor of an IVA can initiate bankruptcy proceedings against you

 

That said, an IVA should "default" the account anyway, since the Ts&Cs of the original credit agreement will be broken.

 

From this leaflet:

On my credit reference file there is a default for an account which was included in my bankruptcy. Is this right?

Yes. If an account has been included in your bankruptcy, the lender

should have marked the account in default. The default will stay on your

credit reference file for 6 years from the date of the default.

 

Problem #3: CRA not marking IVA satisfied

If there's a separate entry for an IVA on your CRF, and the CRA has proof it has been completed satisfactorily, then they should be obliged to mark it as satisfied/completed - just like they are with bankruptcy orders, defaults and CCJs. It's a public record document, so it's not like they have to verify it with a lender.

 

I would suggest that not marking it as satisfied when they have proof is a breach of the "Fourth Principle of Data Protection" (the requirement that personal data is accurate).

 

HTH

 

Cheers

 

Michael

[rmb282]

mcuth

 

Very intersting analytical repsonse you have provided here. Are you able to let us have the source for these rules, please.

 

May I ask Bankfodder, are you suggesting that some of this information is not correct?

 

From previous correspondence with both Barclaycard and the CRA's, they have said that the information supplied to the CRA is true and correct, and therefore the CRA will not change it without Barclaycard's authority, but i think I will submit a claim for compensation under the fourth rules of the DPA, that it must be correct, and also Cc a copy to the information commissioner.

 

To clarify one point, the CRA Equifuc-up have noted my IVA as discharged, however it is not recorded within the Public Record section as I believe it should be, it is in the 'Notice of Correction', and they have told me thats what they do, they don't enter it in the public information section, as they can't....which is bullsh!t, as the others seem to manage it. I must apologise, as you may see, it is beginning to wind me up.....

 

I would appreciate a good letter writing response to the Barclaycard problem, as I am making this my first claim. Please assist.

 

Many thanks,

 

rmb282

[mcuth]

May I ask Bankfodder, are you suggesting that some of this information is not correct?

 

Well, I agree with BF asking the question as a lot of it is my opinion - though my opinion is based on the IC info available, and how IVAs are supposed to work. Unfortunately, there's not enough info available generally on what happens to your CRF during & after IVA - most of the info available is about bankruptcy. But like I say, I think the same principles should apply.

 

From previous correspondence with both Barclaycard and the CRA's, they have said that the information supplied to the CRA is true and correct, and therefore the CRA will not change it without Barclaycard's authority, but i think I will submit a claim for compensation under the fourth rules of the DPA, that it must be correct, and also Cc a copy to the information commissioner.

 

I have no idea how you'd go about getting compensation - personally, I'd just go about getting it corrected first. If you have on record that both the CRA & Barclaycard won't adjust it, and you've reached impasse, I think the only way to resolve it is by getting the IC involved.

 

To clarify one point, the CRA Equifuc-up have noted my IVA as discharged, however it is not recorded within the Public Record section as I believe it should be, it is in the 'Notice of Correction', and they have told me thats what they do, they don't enter it in the public information section, as they can't....

 

How interesting - was it always in the NoC section, or was the IVA entered in Public Records while it was ongoing? If you look at Equifax's own description of a NoC, seems strange that they'd put IVA details in that section:

 

Notice of Correction

 

If there is information on your credit report that is factually correct but you believe affects your ability to obtain credit, add a Notice of Correction to your credit report with our online service. This allows you to add a statement of up to 200 words explaining why the information is misleading.

 

To complete an online Notice of Correction form, click here.

To download the postal form, click here.

 

Some examples are:

 

You have recently changed your name (i.e. recently married, separated or divorced)

You are behind on credit repayments due to redundancy or loss of employment or long-term illness.

 

Once the Notice is on your credit report, it will be shown to any potential lenders when you make an application for credit. Equifax has up to 28 days complete this process.

 

Again, I would pass this on to the IC, along with copies of your other CRF to show that the other agency(ies) can manage this perfectly well.

 

Cheers

 

Michael

[BankFodder]

May I ask Bankfodder, are you suggesting that some of this information is not correct?

 

Not at all. Just because one asks for authoritative source doesn't mean one doubts the information.

It is only that when one takes on the large institutions, it would be less than prudent not to be armed with chapter and verse.

[rmb282]

May I ask Bankfodder, are you suggesting that some of this information is not correct?

 

Not at all. Just because one asks for authoritative source doesn't mean one doubts the information.

It is only that when one takes on the large institutions, it would be less than prudent not to be armed with chapter and verse.

 

My thoughts exactly, and thats why I seem to having problems collating information in dispute of Barclaycard's reporting methods to Problem No 2

 

I would appreciate very much if someone with better letter writing knowledge than I to give me guidance.

 

I must admit since joining and reading a lot of the posts, I'm hooked, what a brilliant forum, I only wish I found this sooner. Cheers Guys and Dolls

 

Bankfodder, you mentioned at the start of this topic that I should possibly think about a claim in the small claims court, do you have any information regarding this? How how does this process take on average?

[BankFodder]

Firstly I have to say that mcuth's repsonse looks extremely good.

However, if I were you I would now go through his sources and see whether you come up with the same answers or if you feel that there might be some other view or other reading of the material.

This would be an important step in your preparation.

I haven't checked it. I'm ill and I don't have time.

 

 

My opinion is that if the banks have obtained our agreement by contract to inform third parties of details about you, then it must be an implied term that they will excercise care and will make sure that all information passed is correct and is passed correctly.

 

If mcuth is right then I think that it is a reasonable argument to say that the bank are in breach of their contractual duty and could be held liable.

 

Of course you will need to know what damage you have suffered as a result of their errors - over and above what you would suffer by legitimate entries into the register. You will have to list out how you have suffered in ways that you would not have done had they done their job properly.

 

I would suggest that you write to BCard with your argument. Send it special delivery. Send copies to the CRAs - also by special delivery. See what they say.

At first don't give deadlines. Just see what the system throws out.

Then depending on their answer and as long as you are still convinced yourself, toughen up. Send a prelim letter and then an LBA but we'll deal with the contents of those as we go along

[mcuth]

Have a look at this post from Simonjohn - very interesting...

 

Cheers

 

Michael

[rmb282]

I've read it, I can't understand it though.....lol ... I need to get my legal head on, may need a few glasses of whisky

[rmb282]

This is copy of the letter that I will be writing to Barclaycard

 

Your comments would be appreciated

 

Ref: My Accounts with You: Barclaycard Visa-XXXX XXXX XXXX XXXX & Barclaycard Mastercard-XXXX XXXX XXXX XXXX

 

On completion of my Voluntary Agreement back in Oct 2003, I obtained copies of my Credit Reference Files and was very disturbed to note that you had been updating data on the above accounts on a regular basis since the date of my Arrangement.

 

I have contacted you by telephone, by letter, as well as via Equifax and have requested that you amend the data, however, we are now in 2006, and I still find that you have not changed this data. As I not received a reply to my latest letter dated 7th December 2005, you have left me no other option than forward my grievance to the Information Commissioner and possibly the County Courts, this is being carried out for the following reasons:-

 

As you are aware, my IVA (IVAXXXXXXX) dated April 2000; included your debts on the above-mentioned accounts. I completed the IVA in May of 2003, however, between the initiation and completion of the IVA, you have reported to the credit reference agencies, late payment reports; thus my credit file now holds an account history of at least 36 months of 3+ months late payments, this being the period between April 2000 and May 2003; this, as a result of your incorrect reporting, may be present on my credit file until May 2009, as you effectively closed the account in May 2003; however, all former debts that were included in my IVA should be marked as "settled" or "satisfied" from the start date of my Arrangement, this being April 2000. This is in accordance with rules laid down by the Information Commissioner and erroneous data breaches the Data Protection Act 1998. This account should also have a Default Date as from the start of my IVA.

 

I would also request that you supply the credit reference agencies with the correct information, this being that the settlement date being that of my IVA, and inform me when this has been done.

 

Upon receipt of a favourable reply from the Information Commissioner, I may also be seeking compensation under Section 13 of the above-mentioned Act.

 

Hoping for a favourable reply, I remain,

 

Yours faithfully,

 

XXXX

[mcuth]

however, all former debts that were included in my IVA should be marked as "settled" or "satisfied" from the start date of my Arrangement, this being April 2000. This is in accordance with rules laid down by the Information Commissioner and erroneous data breaches the Data Protection Act 1998.

 

I don't think so - they can only be marked satisfied/settled from the date the IVA completes, since that's when the account is actually satisfied/settled. As the account should already be in default at the start of the IVA, it doesn't really matter when it's marked settled/satisfied, because the default stays on for 6 years from the date of the default.

 

This account should also have a Default Date as from the start of my IVA.

 

This bit's ok, except I would say that the Default Date should be no later than the start of the IVA...

 

FWIW, aside from that, looks ok to me...

 

Cheers

 

Michael

[rmb282]

The above letter has been amended and faxed 09/03/06 and will be posted to Barclaycard today. I am also sending a copy to the Information Commissioner by email today.

 

So we will see what happens.

[rmb282]

Just a quick note for all concerned, I have heard absolutely diddly squat from Barclaycard.

 

I have heard from the IC, they want it all on the proper form, even though it was all included in the letter and attachments, anyway, I will be following that up.

[rmb282]

I have had a reply from Barclaycard that states:-

 

"I have conducted an investigation into the comments you have raised and as a result I have arranged to have your credit files cleared completely amonth early, in relation to your Barclaycards.

 

The accounts should have been marked as defaulted at the start of the IVA April/May 2000 and this should subsequently have remained on your file for six years from that date.

 

I would like to offer my sincere apologies on behalf of Barclaycard for the error and the delay in responding to this letter.

 

I trust that this is a satisfactory conclusion and if you wish to discuss the matter further, please do not hesitate to give me a call."

 

So, A result. although no mention of compensation for my time, effort and their incorrect reporting for the last six years.

 

I may give them a call.

 

What do you reckon?

[rmb282]

After sending yet another letter to Blackhorse basically spelling out to them that they were in the wrong and I would be forwarding the information to the ICO and claiming for damages in the small claims court.

 

I had a reply that states:

 

Thank you for your recent fax, the content of which has been noted.

 

Having investigated the matter via our collections department, it has been agreed to delete the above agreement totally with the credit reference agencies Experian & Equifax with immediate effect, and they in turn will update their systems with the next five to seven days.

 

The reason for this is due to the fact that the original default date recorded was in fact the date Collection Department wrote off your balance to bad debt in view of your pending IVA, there appears not to have been an original default letter sent to you after the time when you made your last contractural repayment in October 1999. Therefore as there is conflicting 'default' dates it has been considered to delete all relevant information with the Credit Agencies.

 

I trust the action taken today meets with your approval and finally closes this long and drawn out matter to your satisfaction.

 

 

So yes a result, but no real apology for having a 'default' on my account when they didn't issue one, and here's a few ££'s to say sorry.

 

Hmmmm, should I be happy with this, or should I still look for compensation as the 'default' has prevented me from getting cheaper mortgages, or even a standard bank account.

 

What do you reckon?

[mcuth]

Sorry, I missed your Barclaycard post on 2nd April

 

I suppose morally they should pay some compensation - however, their defaults/crappy CRA updates aren't the only thing that will have gone against you getting "prime" rates and a normal bank account.

 

I think I'd call it a draw on both fronts mate, and accept that your credit record is finally going to be put right. With the IVA coming off too, you should be fairly creditworthy again in no time

 

Cheers

 

Michael

[rmb282]

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