car2403 -v- Barclays Bank (Default removal)

[TECHSPEC]

Court is the last resort, as the judgement of the court is final.

 

Information Commissioner, FOS, then court.

 

Of course, if you are wanting a quicker resolution, then you can skip any of these stages, but you may not get the outcome you want.

[jysmystry]

yeah true i guess, i suppose thats an executive decision on each case based on how confident you are. Its still an attractive option. Bet not many banks would attend and their defenses only brief rebuttals.

[car2403]

I'm still mulling this over, but I feel a Information Commissioners Office/FSO complaint will be a big waste of time for the reasons discussed here;

 

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/111211-defaults-background-removal-methods-post1086715.html#post1086715

 

I also need to seriously consider how to structure my POC because I don't want the claim to be stayed pending the OFT TC outcome if I challenge the legality of the charges applied, even though I have already won in Court! It's interesting how the Bank have worded this in their reply, as I now have to challenge the charges again - I have a different opinion in that, if they attend and fail to offer a Defence, they unconditionally accept my claim in it's entirety, according to CPR anyway. Of course they will argue this issue hasn't been decided in open Court and will probably claim that a Judgement by Default Court win isn't a legal basis for a new claim. (And no precedent exists in the Small Claims Court!)

 

My whole case will hinge on the Term notice being incorrect, but only if I can show the charges were applied illegally - which I might not be able to do until the TC is complete.

[car2403]

Definately going to have to issue a Court claim on this one!

 

Here's my inital thoughts on POC; (This will have to be an N1 claim, as opposed to MCOL, due to the size of this - and this is the shorter version!)

 

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 Current Account and overdraft with the Defendant since 1996, numbered XXXXXXXX with a sorting code of XXXXXX, and a Personal Loan Account with the Defendant since 2000, numbered XXXXXXXX with a sorting code of XXXXXX.

3. Both these agreements are regulated debtor-creditor agreements under the Consumer Credit Act 1974.

4. On 11 August 2007, a request was made by the Claimant under s.77 & s.78 of the Consumer Credit Act 1974, (herein referred to as “CCA 1974”) to obtain copies of the originally executed credit agreements that both of these alleged debts refer to. The request was sent via Royal Mail with recorded delivery, enclosing a statutory fee of £1.00 per account. (£2.00 in total) Royal Mail confirms receipt of this request on the 16 August 2007, which gave the Claimant twelve working days from receipt of the request, to provide said documentation, as stipulated in Regulation 2 of The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983. The deadline to comply with the request was, therefore, 3 September 2007.

5. The Claimant claims against the Defendant, in relation to each of these agreements, in the following terms;

OVERDRAFT AGREEMENT:

6. The Claimant, having conducted an audit of his Credit Reference Files held with 3 Credit References Agencies, discovered that the Defendant had recorded a “Default” against the Claimant in relation to his Current Account overdraft on 21 March 2005, with an original default balance of £1,447. The latest update to this entry is dated 1 October 2007, showing an outstanding balance of £1,251.

7. The Defendant has failed to supply any originally executed documentation relating to the overdraft agreement as requested in the Claimant’s request detailed in paragraph 4, above.

8. The Claimant believes that it will form part of the Defendant’s Defence to this Claim that this agreement is not a regulated agreement under the CCA 1974. The Claimant avers, however, that this is a regulated agreement and falls under the remit of that Act. To help clarify these matters, this is an extract from a Court case (Coutts v Sebastyen) and is part of the summing up by the Judge in relation to effect on overdrafts and the function of the CCA in such circumstances;

“The Defendant provided an overdraft on the account;

a. The agreement was a regulated debtor-creditor agreement within the meaning of s.8 and s.13© of the Consumer Credit Act 1974, providing for 'running-account credit' within the meaning of s.10(1)(a) of the Act (in effect, a revolving credit within an agreed credit limit); and

b. That, as such, it was subject to the requirements of Part V of the Act (including the requirements as to documentation set out in sections 57 to 63 of the Act) save and in so far as it was excluded or exempted from such requirements.

Section 65 in Part V of the Act provides that an "improperly executed" regulated agreement is unenforceable by the creditor without a court order. It is common ground that a regulated agreement is "improperly executed" for this purpose if the requirements of sections 57 to 63 have not been complied with.

 

Section 74 of the Act provides for the exclusion of certain agreements from Part V. It provides as follows (so far as material):

"74. – (1) This part …. does not apply to –

(b) a debtor-creditor agreement enabling the debtor to overdraw on a current account, …

(3) Subsection 1(b) … applies only where the OFT so determines, and such a determination –

(a) may be made subject to such conditions as the OFT thinks fit …

(3A) …. in relation to a debtor-creditor agreement under which the creditor is …. a bank …. the OFT shall make a determination that subsection 1(b) above applies unless it considers that it would be against the public interest to do so.

 

THE DETERMINATION:

 

The Determination (which is signed by the Director of Fair Trading) is made under section 74(3) of the Act. I set it out in full:

"1. Under the powers conferred upon me by s.74(3) and (3A) and s.133 of the Consumer Credit 1974, I, the Director General, being satisfied that it would not be against the public interest to do so, hereby revoke with effect from 1st February 1990 the Determination made by me in respect of Section 74(1)(b) and dated 3 November 1983 and now determine that with effect from 1st February 1990 Section 74(1)(b) shall apply to every debtor-creditor agreement enabling the debtor to overdraw on a current account, under which the creditor is a bank.

2. This Determination is made subject to the following conditions:-

(a) that the creditor shall have informed my Office in writing of his general intention to enter into agreements to which the Determination will apply;

(b) that where there is an agreement between a creditor and a debtor for the granting of credit in the form of an advance on a current account, the debtor shall be informed at the time or before the agreement is concluded:

- of the credit limit, if any,

- of the annual rate of interest and the charges applicable from the time the agreement is concluded and the conditions under which these may be amended,

- of the procedure for terminating the agreement;

and this information shall be confirmed in writing.

© that where a debtor overdraws his current account with the tacit agreement of the creditor and that account remains overdrawn for more than 3 months, the creditor must inform the debtor in writing not later than 7 days after the end of that 3 month period of the annual rate of interest and charges applicable.

3. In this Determination the terms 'creditor' and 'debtor' shall have the meanings assigned to them respectively by Section 189 of [the Act]. The term 'bank' includes the Bank of England and banks within the meaning of the Bankers' Books Evidence Act 1879 as amended."

9. The Claimant avers, therefore, that the Defendant is in default of the Claimant’s request to provide those details required by the Determination of The Office of Fair Trading and, while that default continues, should be held in default within the terms of s.78(6).

10. The Defendant has failed to provide a document that complies with this request. Accordingly, the Defendant is “in default” under s.78(6) and the Claimant respectfully submits that this prevents the Court enforcing this debt until the default is rectified as per s.78(6)(a) CCA 1974. The Defendant has also committed an offence under s.78(6)(a) CCA 1974.

11. The Claimant, therefore, puts the Defendant to strict proof of;

11.1. The contractual agreement between both parties in relation to the Current Account, allowing the Claimant to request overdraft facilities and which terms and conditions were included as part of that agreement;

11.2. Where no such agreement can be provided, the agreement between the two parties as to the overdraft facilities provided to the Claimant at the time of application for an overdraft by the Claimant;

11.3. Where no such agreement can be provided, copies of original documentation sent to the Claimant that complies with the Office of Fair Trading’s Determination, issued in relation to overdrafts on Current Accounts, under s.74 and s.133 of the Consumer Credit Act 1974; (that Determination being dated 1st February 1990)

12. In its reply to the Claimants request at paragraph 4, above, dated 6 September 2007, the Defendant enclosed an alleged Termination Notice said to be issued on 21 March 2005 and to be issued in accordance with s.76(1) and s.98(1) CCA 1974.

13. The Claimant is prepared to swear on oath at trial that such Termination Notice was not issued at the time the agreement was terminated by the Defendant and, accordingly, puts the Defendant to strict proof of said issue and receipt of that Notice.

14. The Claimant therefore argues that the agreement has not been defaulted and terminated in accordance with part VII CCA 1974 and as such, the Defendant is not entitled to rely on that default or termination in Defaulting the Claimant.

15. In addition to this, between 19/07/2001 and 29/12/2004 the Defendant debited numerous charges from the Current Account, relating to unauthorised overdraft charges and fees, or charges and fees for unpaid items. The sums removed from the Claimant’s account are detailed in the attached schedule and total £842.10.

16. No admissions are made by the Claimant as to the incorporation of any term into the contract between the Claimant and the Defendant purporting to entitle the Defendant to levy these charges.

17. If the Defendant is able to establish that the contract did contain such terms, the Claimant will contend that these charges are unenforceable at law, being, either, unfair penalties under the Unfair Terms in Consumer Contracts Regulations 1999, because they are a disproportionately high sum in compensation compared to the cost of the purported breach, or, under the law of penalties, the charges are an unlawful, extravagant penalty

18. The Claimant commenced legal proceedings against the Defendant for the recovery of these charges, totaling £842.10, on 11 April 2007 - the Defendant failed to present any Defence during the Case hearing, (numbered 7QZ48960 and heard in the Morpeth and Berwick County Court on 17 August 2007) the Defendant’s Solicitor attending the hearing and stating that she had received no instruction from the Defendant to enter any Defence whatsoever. This was despite the Defendant entering a Defence when the Claim was issued, which the Defendant choose not to rely on at trial. District Judge Large awarded Judgment for the Claimant for the whole amount of the claim - £842.10 plus 8% Statutory interest and costs.

19. The level of default which the Defendant claimed existed in their alleged Termination Notice was £1,364.82 – some £522.72 more than the amount of charges which had applied to the Claimants account. The Claimant asserts that had the Defendant been acting lawfully in their application of charges, there would have been no default, and indeed would not even have been an overdraft - especially as the Defendant charged a contractual rate of interest on those charges.

 

20. The Default and Termination of the overdraft agreement has, therefore, been completed unlawfully and not within the prescribed form required by the Consumer Credit Act 1974.

 

21. In addition to this, as there is no credit agreement provided that complies with the Act, the Defendant cannot seek to rely on enforcement in the form of a Termination Notice, Default Notice, or other, as the requirements of the CCA 1974 has not been met. The Default of this account is therefore unlawful and inaccurate.

PERSONAL LOAN AGREEMENT:

22. The Defendant has admitted in a reply to the Claimants request at paragraph 3, above, dated 21 September 2007, that “the Bank is unable to locate a copy of the original loan agreement”.

 

23. The Claimant avers that this agreement is improperly executed under s.61(1) Consumer Credit Act 1974;

“A regulated agreement is not properly executed unless;

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner”

24. The agreement is therefore enforceable only under s.65(1) CCA 1974;

“An improperly-executed regulated agreement is enforceable against the

debtor or hirer on an order of the court only”

25. The Claimant therefore relies on s.127(3) CCA 1974 against enforcement of this debt;

 

“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).

 

26. The Defendant has supplied an alleged Default Notice said to be issued on 28 May 2002 and to be issued in accordance with s.87(1) CCA 1974.

 

27. The Claimant is prepared to swear on oath at trial that such Default Notice was not issued at the time the agreement was terminated by the Defendant and, accordingly, puts the Defendant to strict proof of said issue and receipt of that Notice.

 

28. The Claimant therefore argues that the agreement has not been Defaulted and Terminated in accordance with part VII CCA 1974 and as such, the Defendant is not entitled to rely on that default or termination in Defaulting the Claimant.

 

29. This Default and Termination of the Personal Loan agreement has been completed unlawfully and not within the prescribed form required by the Consumer Credit Act 1974.

 

EFFECT OF FAILURE TO DEFAULT AND TERMINATE EITHER AGREEMENT CORRECTLY;

30. In relation to paragraph 10 and 16 of these particulars of claim, failure of a Default Notice or a Termination Notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998) but is 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)

 

DATA PROTECTION ACT 1998:

 

31. The Claimant contests that the Defendants 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. (Herein referred to as DPA 1998)

 

32. 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.

 

33. 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.”

34. 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”.

 

35. The claimant asserts therefore that the Termination Notice (issued by the Defendant against the Claimant’s overdraft debt) and the Default Notice (issued by the Defendant against the Claimant’s Personal Loan debt) amounts to a material breach of the fourth Principle of The Data Protection Act 1998.

 

36. The Claimant, therefore, commences proceedings against the Defendant under the Data Protection Act 1998 for the removal of the Termination Notice and the Default Notice, respectively.

 

37. This is 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."

38. The Claimant wishes to emphasise the term "specified and lawful purposes" as in ‘those specified within the contract’, and no more, and also emphasises the term "shall not be further processed".

 

39. After seeing other cases being handled, the Claimant is aware that Financial Institutions and Credit Reference Agencies are claiming that they have a “legal right” to maintain this type of adverse entry for up to six years. When challenged, they are unable to quote the exact Statute that includes this so-called “legal right” - they in fact remain remarkably quiet when questioned about this. Only after insistence of disclosure do they eventually concede that, whilst they have no statutory right, it is “standard industry practice” but they added that they are “allowed to by Law”. After further challenges, they finally admit that unless this was a County Court issue, their term actually referred to contractual Law, but continued to emphasise that it was “standard industry practice to record default entries for six years.” In this case, no such contractual provision exists, so reliance on any contract should fail under the DPA 1998.

 

40. After scrutiny of all the relevant legislation, including the Consumer Credit Act (as amended), the various Financial Services Acts and the Data Protection Act, etc., it is clear that there is absolutely no legislation that allows a lender or supplier (e.g. the Defendant) to collate, process or distribute any other information unless there is express written permission from the data subject.

 

41. In fact, Section 10 of the Data Protection Act awards the real authority, regarding privacy of data, to the data subject, not the Data Controller. The Act is also very clear as to the rights of the data subject in respect of withdrawing permission to continue data processing and disclosure:

“10. - (1) Subject to subsection (2), an individual is entitled at any time by notice in writing to a data controller to require the data controller at the end of such period as is reasonable in the circumstances to cease, or not to begin, processing, or processing for a specified purpose or in a specified manner, any personal data in respect of which he is the data subject, on the ground that, for specified reasons-

(a) the processing of those data or their processing for that purpose or in that manner is causing or is likely to cause substantial damage or substantial distress to him or to another, and

(b) that damage or distress is or would be unwarranted.”

42. However, there is some exclusion provisions for Data Controllers, and Section 10 does continue with various exceptions to subsection (1) above, and these are quoted, in full, below:

“10. - (2) Subsection (1) does not apply-

(a)in a case where any of the conditions in paragraphs 1 to 4 of Schedule 2 is met, or;

(b)in such other cases as may be prescribed by the Secretary of State by order.”

To paragraph (b), I can only presume that the Defendant has not applied to HM Secretary of State for an order allowing you an exclusion, which leaves the Defendant with the only remaining possibility of requesting an exemption under paragraph (a).

 

So, we must turn to the exemptions permitted in paragraph (a) to find where the Defendants Data Controller may invoke his perceived exemption to the Data Protection Act, namely, those listed in paragraphs 1 to 4 of Schedule 2. These exemptions are, in full, below:

“1. The data subject has given his consent to the processing.

2. The processing is necessary-

(a) for the performance of a contract to which the data subject is a party, or

(b) for the taking of steps at the request of the data subject with a view to entering into a contract.

3. The processing is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by contract.

4. The processing is necessary in order to protect the vital interests of the data subject.”

It is the Claimants contention that the Defendants supposed right of obtaining an exemption is not contained within any of these paragraphs – taking each in turn with notation to give a clearer explanation;

1. The data subject has given his consent to the processing.

That consent, as no legal agreement exists, therefore, also does not exist.

2. The processing is necessary-

(a) for the performance of a contract to which the data subject is a party, or

(b) for the taking of steps at the request of the data subject with a view to entering into a contract.

For both (a) and (b), there is no contract in existence.

3. The processing is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by contract.

40. According to the Information Commissioners Office (ICO), exemption 3 includes all other statutory obligations for which the interests of national security and welfare override personal privacy. These obligations allow for the provision of data to Official agencies and organisations, e.g. disclosure to crime prevention agencies (Police, Intelligence Services, etc), official Government agencies (DVLA, DSS, Passport Agency, etc.) and health authorities, etc., and for any other purpose not agreed within a civil contract.

The three major credit reference agencies are not Government bodies, nor official agencies, but are “for-profit” companies. None of these three agencies are listed in the appropriate Data Protection Act Schedule that names the specific organisations that are permitted any such exemption rights.

4. The processing is necessary in order to protect the vital interests of the data subject.”

42. With reference to the ICO again, this is interpreted as “anything that affects the data subject as a matter of life and death”. This clause is included in the Data Protection Act to permit data, like medical records or contact details, being disclosed in emergency situations. The Claimant does not believe that this case could be described as anything like a matter of life or death.

43. So, it is clear to see that there is neither statutory provision permitting the Defendant to assume continued processing rights of my data at his discretion, nor any exemption. I can then only assume that the Defendants is relying on the Common Law – as already discussed, above, no such contract is in existence.

 

44. 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.

 

45. The recording of “Default” information by the Defendant, without consent, against a credit file without having an agreement regulated under the CCA 1974, or a legal contract, 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.

 

46. 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.

 

47. The Claimant argues that the processing or continued processing by the Defendant of the said 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.

 

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

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.

 

49. The Claimant further claims the Court fee of £75.

 

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

50.1. Substantial damages from the Defendant to the value of £1,000 for the legal reasons outlined in Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998 and Kpohraror v Woolwich Building Society [1996] 4 All ER 119;

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

50.3. Costs, at the discretion of the Court

[jysmystry]

woah you don't do things by half do you!

 

I'll be honest i don't think you'll get 26.1, it would seem that the bank would have to challenge you to get such a judgement rather than the other way round which makes it look more like you trying to escape a legitimate debt but i hope i'm wrong as this would represent an outstanding success.

 

Even if they don't rule the agreement as being unenforceable so long as they accept your argument that you didn't recive the various notices i'd say your onto a good thing here as the logic train is clear. Worst case i think they will set aside the default and force them to make a new one which will in effect remove the default.

 

I'll be very interested to see how this goes and wish you the very best of luck!

[car2403]

I'd have to disagree with you Jystmystry, in that the whole point of going to Court will be to get confirmation that the agreements (if they even exist) are unenforceable. If they are enforceable I won't have a leg to stand on, as they can argue implied consent to process in that case. (and the Court may allow enforcement by Order. Don't think that will happen, though).

 

The problem with the notices is that I don't have to have "received" them, showing that they were created and sent will probably satisfy the Court - receipt isn't a prerequisite of the process of Defaulting me, sadly.

 

I'm actually prepared to buck this part of their argument, if it comes to it, as each account has unlawful charges as part of the balance - making the Default balances incorrect. I just haven't mentioned that at this stage, as I don't want the stupid Court to stay the claim until October next year for the OFT Test Case outcome - it's a punt, but I'm hoping this won't get to the Hearing/Allocation stage and I'll offer withdrawal of the claim if they are prepared to remove the Default. (I'm even happy to continuing paying, deep down, if I have to)

 

Also, it's my understanding that they can't withdraw the Default/Termination and then Default/Terminate the account again - this isn't possible (unless I agree to it) within the terms of the CCA.

 

So, its a case of Poker face to see how far I get now. I think they'll fold before I give up and I have a good enough chance of convincing the Judge that I'm right - I'm interested to see their final Defence if they do decide to show up, though.

 

(P.S. I haven't issued this Claim yet, as I'm still considering my options re: FOS/Information Commissioners Office etc beforehand)

[car2403]

I'm looking at the N1 Claim Form and it has room for the "Defendant(s)" details.

 

I want to bring this claim against Barclays, (1st Defendant) and CallCredit and Equifax - (2nd and 3rd Defendants) is that possible, because I know that a MCOL Claim only allows 2 Defendants to be entered.

 

If I can only enter 2, do I drop CallCredit or Equifax? CC hasn't replied, but the Equifax replies are shown in this thread.

[car2403]

I'm looking at the N1 Claim Form and it has room for the "Defendant(s)" details.

 

I want to bring this claim against Barclays, (1st Defendant) and CallCredit and Equifax - (2nd and 3rd Defendants) is that possible, because I know that a MCOL Claim only allows 2 Defendants to be entered.

 

If I can only enter 2, do I drop CallCredit or Equifax? CC hasn't replied, but the Equifax replies are shown in this thread.

 

I'm not sure why this post appears before #34?

[car2403]

Next Equifax response;

 

Thank you for your recent correspondence, details of which have been passed to me for investigation and resolution.

 

As advised in our response of 24th October 2007, Equfiax are unable to remove this information from your Credit Report without written authorisation to do so from the lender concerned, which has not been provided in the course of your recent Notice of Dispute with the company concerned. I can therefore only recommend that should you wish to pursue this matter further, that you do so in direct contact with the company concerned or by contacting either the Office of the Information Commissioner or the Financial Ombudsman. Contact details for these organisations have been provided in previous correspodence.

 

I hope the above is of assistance.

 

Kind Regards

 

Mandy Russell

Customer Relations

 

My reply;

 

While your investigation in to my complaint may be concluded, I do NOT agree to the closure of this complaint as outlined previously.

 

I feel that Equifax are leaving me with no alternative but to issue formal Court proceedings against them to enforce my rights under the Data Protection Act and you have had more than enough opportunities to rectify this error on your behalf. Relying on incorrect information from your "customer" is not of my concern - but the fact you are continuing to process incorrect information about me as a Data Subject is!

 

If this complaint has been closed, please reopen it and escalate this to the next level within your organisation. In the meantime, I will continue to seek legal advice on issuing Court proceedings to force your compliance with my Data Protection Notice as attached to this complaint.

 

Their next reply;

 

Thank you for your recent correspondence.

 

I have passed your query to our disputes department to request they once again contact Barclays in order to reinvestigate the information provided to Equifax. Once a response is received in relation to this matter, you will be advised of the outcome.

 

I hope the above is of assistance.

 

Kind Regards

 

Mandy Russell

Customer Relations

 

I bet they get sick of this before I do!

 

(Maybe...)

 

Haven't even had a reply from CallCredit yet, so this may start to get a bit tedious...

[car2403]

I'm sending my N1 Claim Form to the Court for issue today

[car2403]

Next Equifax reply; (although it's the same as one they've provided before)

 

Thank you for your recent enquiry.

 

The Client concerned has investigated the accuracy of the information and has asked that you contact them directly at your local branch. As our client has not given permission to amend this information it remains unchanged on your credit report. Please note that the Notice of Dispute previously loaded to your credit report has been removed

 

If you require further information on the content of your credit file, you may wish to visit: https://equifaxuk.custhelp.com. Here you can view our Frequently Asked Questions and submit an on-line query or attach supporting documentation via our "Ask a Question" facility, with no concerns about postal delays.

 

We hope the above details are of assistance to you.

 

Equifax Customer Services

 

My response;

 

Please refer to my response to this same reply previously provided to you on 23/10/2007 03.07 PM. My response to your latest reply is the same as this reply and I STILL DO NOT ACCEPT this as a complete resolution to my query.

 

That response being;

 

I do not accept this as a resolution to my query - I have already queried this entry unsuccessfully with Barclays Consumer Finance Debt Recovery in that they have sent me a final response outlining their refusal to remove the Default information I am querying.

 

This query is NOT resolved and should NOT be marked as being resolved without either my consent or the removal of the offending information. A simple referral back to square one is not a satisfactory resolution to my query. Please ensure my Data Protection Act s.10/s.12 Notice is put in to effect, or I will take the action outlined in the attached letter against Equifax as a 2nd Defendant to Barclays Bank PLC.

 

Actually, I couldn't workout how to issue the claim against BOTH Barclays AND CallCredit AND Equifax, so I've just issued against Barclays as the only Defendant - they don't know that though.

 

They came back almost immediately with;

 

Thank you for your recent enquiry.

 

We acknowledge your comments regarding this information, however at this stage I wish to advise that your Dispute has been closed and the reply we have received from the supplier is considered adequate for the purpose of a Dispute.

 

This information is supplied by our credit clients and as such we do not have the power to amend this information unless we have received written authorisation to do so from the respective sources, and can only suggest that you contact the company concerned with any further enquiries you may have regarding these details and they will advise you further.

 

If you require further information on the content of your credit file, you may wish to visit: https://equifaxuk.custhelp.com. Here you can view our Frequently Asked Questions and submit an on-line query or attach supporting documentation via our "Ask a Question" facility, with no concerns about postal delays.

 

We hope the above details are of assistance to you.

 

Equifax Customer Services

 

My response;

 

I still do not agree to the closure of this dispute - please reopen it immediately (I have stated my case in the attached letters and posts already) and escalate this to the next level within your organisation. I do not accept this as resolution to my query and a Notice of Dispute must be displayed until this is resolved to MY satisfaction.

 

I wonder when they'll get sick of providing this "copy/paste" responses, but I won't get sick of replying!

[Paintball]

Surely the Notice of Dispute whould remain on your file until the dispute is settle; and clearly it is not. I wonder if Barclays have unduly influenced them? And I assume you haven't called into your local branch to discuss the matter as suggested?

[car2403]

I agree it should stay until resolved, but they keep removing it saying it is resolved because their investigation is completed - which isn't the same as saying my complaint is resolved.

 

I haven't bothered with the local branch, as they won't deal with the account now that its with Consumer Finance Debt Recovery - and I've received their final response saying that they will no longer respond to me on the subject.

[Paintball]

I agree it should stay until resolved, but they keep removing it saying it is resolved because their investigation is completed - which isn't the same as saying my complaint is resolved.

 

I haven't bothered with the local branch, as they won't deal with the account now that its with Consumer Finance Debt Recovery - and I've received their final response saying that they will no longer respond to me on the subject.

 

Hey ho! Have you issued that N1 yet?

[car2403]

It's in the post, Claim should be issued any day now.

[TECHSPEC]

Natwest have renaged on their promise to remove my default, so i looks like i have a fight on too.

 

They don't care what affect mis-information has on peoples lives.

[asiddle]

subscribing

 

Interesting read. Am about to do the same. Look forward to your updates car.

[car2403]

Here's the next response from Equifax;

 

Thank you for your recent correspondence, details of which have been passed to me for investigation and resolution.

 

Credit Agreement - Barclays Bank

I acknowledge your comments regarding the above account; however I would advise once again that Equifax are unable to amend or remove this data from your Credit Report without authorisation from the above company therefore this information remains unchanged on your Credit Report. Please find below the exact response to your recent dispute.

 

"I have been in contact with our collections department who have stated that they will not have a copy of the original credit agreement, and that the customer should visit the branch at which they opened the account. If the branch are unable to provide a copy of the signed credit agreement, the customer will need to raise a complaint and request for it to be escalated. The complaints team will need to investigate the case, and they will contact us to remove the customers credit file if applicable. Unfortunately we are unable to act on the information provided by the customer as the complaint needs to be processed through the proper channels."

 

If you are not satisfied with the above response, may I suggest that you forward your complaint in writing to the Information Commissioner's Office for further investigation. I have included their address below for your convenience.

 

Information Commissioner's Office

Wycliffe House

Water Lane

Wilmslow

Cheshire

SK9 5AF

 

I would advise that my investigation into this matter is now complete and this query is now closed.

 

Kind Regards

 

Mandy Russell

Customer Relations

 

I'm sure the Judge will love those comments! I'm not going to bother with Equifax any more, as I think I've gotten everything I can from them now - despite me pledging not to give up with them earlier. I think if I'd issued with them as 2nd Defendant, I may have, but I couldn't see the point really...

 

The Claim has been issued on 8 November, deemed served on 10 November (this is what the N205A Notice of Issue says, anyway!) and BB has until 26 November to file its response. Now, I would have thought issued on 8 November, served on 13 November and BB has until 27 November to reply? I've never issued via N1 before (always used MCOL) so is this normal?

 

The other thing is - bear with me, because I'm paranoid because of this now - I had a "dream" (I'm using quotations, because it felt so real but I'm sure I was asleep!) that the claim was allocated to the Fast Track and I lost having to pay for Barclays Defence!

 

 

I've read Mod's posts all over the shop saying that all Data Protection Claims are allocated to the Fast Track, but is this likely and have I just shot myself in the foot by issuing without planning to pay their fees?

 

Also, is it normal for Claimants to become THIS paranoid once they've issued a Claim? (Claimants remorse?)

[asiddle]

Well you have my total support and am very much looking forward to the outcome. Unfortunately, whilst I am no expert, the fact is that should you lose, which I am sure you want, they may well hit you with the costs. However as you are not going to lose its not a problem....right

[car2403]

I suppose that, by definition, paranoia is generally unfounded and excessive and irrational - it's just nice to hear some reassuring words from fellow CAG-ers at such times.

 

Thanks, asiddle!

[shane5408]

excellent work Chris, subscribbing

[TECHSPEC]

I wish you luck.

 

Natwest finally backed down and removed my default after i followed the guide on the internet to the letter.

 

Today my credit score rose by 150 points.

 

Hope you get the same result.

[ncf355]

Car

 

I can confirm without a shadow of a doubt that DPA claim does not always mean fast track, I have an ongoing case against a bank and that has remained fully within Small Claims

 

Seems like you have a very well organised and researched claim

 

Very best of luck to you

 

NcF

[car2403]

Car

 

I can confirm without a shadow of a doubt that Data Protection Act claim does not always mean fast track, I have an ongoing case against a bank and that has remained fully within Small Claims

 

Seems like you have a very well organised and researched claim

 

Very best of luck to you

 

NcF

 

Phew!

 

Panic over...

 

Thanks!

[car2403]

Acknowledgement of Service received - intend to Defend in full.