No valid CCA - what next with experian

[Jesteruk]

Hi folks,

After checking my file a few months ago, i had a notice of correction added disputing a default from Great universal. last week i recieved a letter from GUS stating they were "Unable to locate" a copy a my CCA.

 

I replied with a s10 notice giving 14 days to comply. this expires next friday.

Whats my next course of action??

Will experian and gang remove info as creditor is UNABLE to provide proof,

when i spoke to experian they just give me the same BS "Only the creditor can remove information"

 

Cheers for ya help

[Sparkie1723]

Hi folks,

After checking my file a few months ago, i had a notice of correction added disputing a default from Great universal. last week i recieved a letter from GUS stating they were "Unable to locate" a copy a my CCA.

 

I replied with a s10 notice giving 14 days to comply. this expires next friday.

Whats my next course of action??

Will experian and gang remove info as creditor is UNABLE to provide proof,

when i spoke to experian they just give me the same BS "Only the creditor can remove information"

 

Cheers for ya help

 

Hi jesteruk,

I'm having a very similar fight with Callcredit so here is something you can send Experian.

Have a look at finlanders thread on "Experian the final battle begins"

 

sparkie

 

 

 

 

Dear Callcredit,

Under section 159 and consumer Credit Regulations, I can see no regulation tat states that a CRA cannot remove data without the consent of the creditor/supplier of that data. This being so when you tell me that you cannot remove it without the consent of HBOS you are actually making a negligent misrepresetative statement under the misrepresentation Act 1967.

 

S2(1) Misrepresentation Act 1967

Negligent Misrepresentation

For negligent misrepresentation the burden of proof rests on the representee to show that they had reasonable grounds for believing it to be true. This can be a heavy burden to discharge. Therefore I again demand that this entry be removed. Yours sincerely sparkie

2008-08-08 15:36:42

[Jesteruk]

cheers sparkie will give it a try

[falcon185]

Hi Sparkie,

I tried that with Experian, what a bunch of T***ers, heres the reply I got from them!!

 

Thank you for your email, which we received on 10 August 2008.

 

I have clarified our position in connection with your ongoing dispute. I am sorry if this has not resulted in these entries being removed from your report. As we can only amend or delete information at the request of the companies concerned I would suggest that if you wish to pursue this matter that you take this up with them.

 

Alternatively, you may wish to take up this matter with our regulator, the Information Commissioner. The contact details you may require are as follows:

 

The Information Commissioner's Office: Wycliffe House, Water Lane, Wilmslow, SK9 5AF

 

Having queried the accuracy of the entries that you wished to dispute, we have fulfilled our legal obligations and complied with your rights under Section 159 of the Consumer Credit Act 1974 and the Data Protection Act 1998. In view of this we will not be answering any further correspondence from you in connection with this matter.

 

Any other queries that you may have about your report will be dealt with in accordance with Section 159 of the Consumer Credit Act 1974.

 

The fact that we can not remove data without the authorisation of the company who has supplied it to us is a contractual obligation and as such it is not misrepresentative to advise you of this.

 

Section 159 of the Consumer Credit Act 1974 sets out our obligations when an item of data is disputed. As I advised previously the process we adopt is compliant with both the Consumer Credit Act 1974 and Data Protection Act 1998.

 

The checks we undertake and actions we apply with respect to disputed information are considered reasonable by the Information Commissioner's Office.

 

I hlgh lighted in red where they say its a "Contractual Obligation" so a contract with a DCA means they can disregard the law? or am I missing something here, more to the point I think THEY are missing the point dont you?

[Jesteruk]

from what i have read over the last few days, thats a standard letter from experian. As for contractual cr*p, im not surprised DCA's pay experian Shi*loads a year for licenses etc

would love to get hold of the contract to see if there is any loop hole there.

 

But surely they have a duty to ensure there info is correct.......im sure thats in the regs somewhere.......

[Sparkie1723]

Under the Fourth Principle of the Data Protection Act they have to take more than reasonable steps, and they cannot apply this as a blanket answer that they have, as the Information Commissioners Office states that the lengths they have to go to depends on each and every individual case and must take into consideration the damage that can be caused to the data subject.

 

Also there is no law that states that a CRA cannot remove data from their file without the consent of the supplier, there is also no mention of that fact in the Consumer Credit Regulations appertaining to CRA's which must be read in conjuction with section 59 of the CCA.

 

In point of law ...the phrase they use "it is accepted industry practice" will not stand up in a law court.

 

The contradictory misleading misrepresetative statement they have used again, if this was indeed fact and true, the they would never be able to remove any when they receive no reply to a query they make with a creditor/supplier of information.

The fact remains they rely on the fact that no-one will ever really challenge a CRA in Court because they force an individual into believeing they NEVER make mistakes and comply with all laws and regulations.

 

one law they do not comply with is the Misrepresentation Act 1967.

 

 

also Information Commissioners Office info

CRA’s

It is important to note that by virtue of (a) above it is not enough for a data controller to say that, because the information was obtained from either the data subject or a third party, they had done all that they could reasonably have done to ensure the accuracy of the data at the time. Now data controllers may have to go further and take reasonable steps to ensure the accuracy of the data themselves and mark the data with any objections. The extent to which such steps are necessary will be a matter of fact in each individual case and will depend upon the nature of the data and the consequences of the inaccuracy for the data subject. This approach exceeds the requirements of the Fifth Principle in the 1984 Act.

 

 

Any default record should be accurate. We normally expect a lender to keep records that are necessary to showan 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.

 

Is the lender prepared to take court action if not why not?

Tell Experian this as well In order for a CRA to keep the default on their file they have got to ask the supply this question above in their enquiry...sparkie

 

 

 

sparkie

Edited August 11, 2008 by Sparkie1723

[Jesteruk]

just what i was looking for

thanks again!

[finlander]

Experian Terms and Conditions

 

this might give you an idea of their 'contract'

 

[Jesteruk]

I certainly would hate that contract if i was a DCA

Experian will recover any legal cost if joe public were to sue them

Section 7h:

You will protect us, and keep us fully protected, against any claims or actions made or brought against us as a result of:

• you making the Information inaccurate or incomplete (whether by something you do or something you don't do); or
  
• you using the Services.
  

Cheers finlander!

[Jesteruk]

well they replied to day with a standard letter:

 

Our Ref:

Dear JesterUK

Thank you for your email, which we received on 08 August 2008.

The account information we hold actually belongs to lenders. Only they can amend it or tell us to amend it for them.

The accuracy of the information we hold is very important to us. Lenders (who provide most of the information on your report) use it to help them decide who to give credit to and therefore mistakes are not in our interests or theirs. We cannot check the accuracy of each piece of information we receive but we do carry out many important checks including whether or not names and addresses are complete and correct. We also make sure monthly updates to existing credit accounts are consistent with information previously sent to us.

We actively encourage people to check their own credit reports regularly and to tell us if they have any concerns about the information we hold. If any mistakes are brought to our attention, we contact the information provider immediately to correct any mistakes as soon as possible.

If you think any entry in your report is wrong we are obliged to contact the lender to verify your comments or the validity of the entry and adhere to any instructions to amend the information. The lender is equally obligated under the Consumer Credit Act 1974 and Data Protection Act 1998 to ensure that the information they provide is accurate and up to date. If no amendment or deletion instructions are ordered we are unable to amend the information.

I assure you we will act upon any instructions received from Legal Direct to remove this information from your credit report.

For further clarification of this you may wish to contact the Information Commissioner's office at the following address:

The Information Commissioner: Wycliffe House, Water Lane, Wilmslow, SK9 5AF

Kind regards

Miss Rachel Burt

Senior Consumer Service Officer

CreditExpert

 

Thinking im ganna have fun with this one!

[Jesteruk]

And heres the reply ive just sent:

 

Dear Miss Burt,

Thank you for your response to my query regarding the incorrect information held on my file.

 

I have noted a number of items in your email including:

• The account information we hold actually belongs to lenders. Only they can amend it or tell us to amend it for them.
  

Any default record should be accurate. We normally expect a lender to keep records that are necessary to showan 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.

 

• If you think any entry in your report is wrong we are obliged to contact the lender to verify your comments or the validity of the entry
  

The lender contacted myself and advised me they DO NOT hold a VALID AGREEMENT or DEFAULT NOTICE. Therefore the information you hold is not acurate

Note:

41 Credit reference agencies potentially have a defence against action through the courts by individuals who successfully challenge the accuracy of data received from a lender. However, this defence is only available if the agency takes reasonable steps to make sure the data is accurate and, as soon as they become aware of the challenge, takes steps to mark the file accordingly7. Records where the accuracy is challenged can be marked as ‘under query’. This marker alone is unlikely to be sufficient to provide protection against claims, including those for compensation. Agencies should therefore ask the lender to substantiate the disputed information within a reasonable time frame, for example, 28 days, and, if the lender is unable to substantiate the disputed information in that time, should suppress the information from the file. - THIS GIVES YOU THE AUTHORITY TO SUPRESS INFORMATION

 

43 If we conclude that there is a genuine, reasonable and unresolved dispute between the borrower and lender, then we are likely to find that personal data have been processed unfairly if a default has been filed. Defaults filed in these circumstances may also be inadequate for the purpose of credit referencing in that they do not provide meaningful information about the creditworthiness of the customer.

 

As you can see the IOC seems of the opinion that it is the responsibility of the Credit Reference Agency to check that there data is accurate and not simply to refer the subject to the originator. Also if a dispute is proven then in his words-

 

‘If we conclude that there is a genuine, reasonable and unresolved dispute between the borrower and lender, then we are likely to find that personal data have been processed unfairly if a default has been filed.’

 

I hope i have made myself clear and the offending information is removed from your files. Should you wish to keep this information on my file after 4th September 2008 (28 Days) then i will have no further option but to approach either the IOC or courts for this matter to be addressed. I also remind you that i can provide supporting eveidence to show that Legal Direct DO NOT hold either a valid agreement or a valid Dault notice, both of which are required.

Should you be unsure of the information i have provided then please feel free to consult your legal department.

 

I await your reply in this matter

 

JesterUK

 

Thanks to those who posted in other threads which enabled me to compose it!

[Sparkie1723]

Jesteruk,

 

You never mentioned you believe that they should offer you some compensation for their negligence in failing to comply with ALL laws statutes and regulations and not just the DPA, the DPA says exactly that.

 

A data contoller must be aware of all statutes and laws along with common laws and must abide by them.

 

 

sparkie

[Jesteruk]

I was going to add it, but knowing experian and the troubles every one has they will no doubt just fob me off again

When they do they will recieve a full breakdown of charges and compensation, Whats the going rate for legal research nowadays? £9.50 ph??

 

can see £££ above his head

[gymguy]

Good luck with this Jester.

 

I too am having a nightmare with Experian and their fob off letters never cease to amaze.

 

My story is similar in as much as I am fighting two defaults on my file where one the DCA has siad they don't have to have a copy of the agreement to enforce (Its for a current account overdraft/excessive charging). Their client HBOS have also ignored all my SAR requests to supply the CCA.

 

Experian always side with their client and even they refuse to enlighten me as to the steps they have taken in establishing that the default is justified and that the data they are recording and distributing is accurate.

 

You can't win, no matter what law your quote they laugh and do nothing.

I have written to the Information Commissioner's office and told to expect a longg delay as they have a backlog and are busy. What a way to run a business.

 

Experian are a nightmare - Good Luck!

[Jesteruk]

Cheers Gymguy,

Im fully aware that they like to side with the DCA, not surptising that 90% of there income is from them, its there bread and butter. They pee them off then they will only goto another CRA.

But what they dont seem to realise is I will go to court over this matter.

As for as this ICO go, i can understand that they are giving long delays, they are probably understaffed, and deal with more then just us lot on here LOL

 

On 2nd sept if i still havent heard from experian then they will be getting a LBA. This should force them to think twice about who they choose to ignore.

 

Hope the ICO is kind to you and gets the result you want.

[gymguy]

Jester,

 

The LBA you are sending Experian which law are you taking them to task over? Data Protection or Libel?

 

I may well follow suit.

 

I have three defaults on my file and a CCJ. I have got the CCJ set a side, one of defaults removed and I'm working frantically on the other two.

 

One is with the CRA Lowell who have now finally complied with my SAR to provide a deed of assignement which clearly states the date they purchased the alleged debt from HBOS. Problem for them is that they issued a default on my credit file some TWO YEARS before they lawfully became authorised to own and collect on the debt - this can't be right can it?

 

As both HBOS and Lowell duplicated their defaults I got HBOS to remove theirs but Lowell are refusing. I understand I have been defaulted against once....check.....got that sorted. Lowell didn't own or have any legal claim to record anything on my file during this date. I have also asked for a true copy of my CCA but Lowell point out that as the alleged debt relates to a bank account and not a credit agreement they don't have to comply. I have pointed out that the alleged debt relates to an overdraft facility with interest charges and penalties and IS therefore covered by the CCA.

 

So I'm fighting (rolling up sleeves and making fists)

 

One default left to attack with HBOS for a measley £400 which HBOS say is commerically unviable to collect on (layman's term for they haven't got a legal hope) I'm not trying to avoid paying anyone and the rest of my credit file is clean. I've offered them the £400 if they will remove the default - they refused.

 

I object to HBOS defaulting me for £400 when they owe me £10k in unauthorised and unfair bank charges (Claim sitting with County Court)

 

Throughout the process Experian watch from the sidelines refuse to remove anything spout legal boiler plates and only when their client 'has' to agree or the court set aside do they do so without apology or responsibility. Only to smirk and plan their next round of license fee increases for protecting their client's interests.

 

I'm planning on taking them to task including compensation for the libel issue when all this is over.

 

Let me know how you get on mate.The have got a lot coming to them.

 

G

 

[Sparkie1723]

Lowell are right that they do not have to comply with a CCA to supply a Bank account contract .......They think!! they are being very clever, just write to them and tell them that under the New Fraud Act 2006 it is an offence to with hold documents that you are legaly entitled to be supplied with, and in order to register a default and maintain it they must have an agreement to support it, in order to dispute it ( or not) you must have sight of this document.

They have got to supply it or remove the default.

 

sparkie

 

sparkie

[Jesteruk]

Experian now say they never recieved my email, oh dear, resent with compensation part added. They now have a week. LOL

 

ICO here i come

[lickthewallfatboy]

these people are going to keep fobbing us off until someone takes the step of actually taking them to court.....

 

that should settle it one way or another

[Jesteruk]

Well come the 2nd Sept, and no further word from experian then i will take it up with the ICO. If they fail to get Experian to remove it then off to the courts i go.

[Jesteruk]

Oh dear, they got me so annoyed yesterday that ive just made a complaint to the ICO about GUS, had to mention the fact that experian werent helping matters,,,, now lets see how long this takes

LOL

[Jesteruk]

Well they finaly replied with the following:

 

Dear Jesteruk

Thank you for your query received on 28 August 2008.

In view of your comments about the Shop Direct account, I am writing to the company concerned for you. This is because I cannot amend your report without their consent. I will let you know what they say as soon as they reply.Why? you already investgated this 2 months ago!

While I investigate your comments, I am adding the following statement to the entry you have queried.

"THE CONSUMER HAS DISPUTED THE ACCURACY OF THIS ENTRY AND WE HAVE THEREFORE ASKED THE PROVIDER TO INVESTIGATE IT. GIVEN THAT THIS DATA IS DISPUTED, PLEASE TAKE CARE IF MAKING AN ASSESSMENT OF ANY KIND THAT MAY INCLUDE THIS DATA."

Your report will change in the next seven days. Please use this correspondence if you need proof in the meantime. We will tell all the companies that have searched your credit report in the last six months about the change to your information.

I would advise that in your previous correspondence you did not specify which entry you were disputing. The reference of Y1 supplied related to an existing notice of dispute attached to your report and not a specific account entry. Therefore the 28 days to respond to your query would commence from the receipt of your email on the 29/08/08.urm 28 days from when i raised the query LAST MONTH!

With regards to Section 41 of the Information Commissioner's default guidance notice, I can assure you that we do take steps to substantiate the data supplied to us and these steps are considered reasonable by the Information Commissioner's Office. We also re-supply copies of this guidance to all of our clients at six-monthly intervals.

We will not be suppressing the information from your report at this time and I draw your attention to Section 45 of the Information Commissioner's technical guidance note:

We will not necessarily ask a lender to remove default records while they are carrying out their initial investigation to establish whether a dispute is genuine, reasonable or unsolved. However, there should be no unnecessary delay in this investigation. In these circumstances, defaulted accounts under investigation should be marked as ?under query? on the credit reference agency file.

If companies, or credit reference agencies, removed information simply because the individual concerned claimed that there was a legitimate dispute, any individual could claim that all the adverse information on their report was "in dispute" purely as a means of improving their credit report. This would put our clients at risk by enabling people to potentially obtain finance that otherwise would not be offered to them.

Please note, that if a company cannot provide you with any actual evidence of your initial consent, this does not necessarily mean that they have to remove the data from your credit report.In my mind it does, they dont have permission!

For example, if a company can demonstrate that an account was being paid on time for a number of months/years prior to falling into arrears, this is often seen as evidence that the individual concerned must have consented to the terms and conditions of the contract.

Furthermore, a company will only open an account if the applicant agrees to their terms and conditions so, unless the account was opened fraudulently, the account holder must have agreed to the standard terms and conditions for that type of account.

Therefore, as long as the company terms and conditions specify that they reserve the right to pass account information to a credit reference agency, a period of meeting contractual obligations, or simply opening the account, will often be deemed as evidence of consent to those terms and conditions.

It is clear that your account with Shop Direct was paid on time on numerous occasions prior to going into default. I do not believe that you would have made regular payments on this account unless you had agreed to open this account in the first place, thereby consenting to the information being recorded on your credit report.

Yours sincerely

Mr Neil S Stone

Consumer Service Officer

CreditExpert

 

Any ideas?

[Jesteruk]

And heres the reply:

 

Dear Jesteruk

Thank you for your email, which we received on 02 September 2008.

I note your comments, however the information we hold belongs to the lenders concerned, we therefore cannot amend or delete information without their consent, hence we have contacted them again on your behalf.

 

Kind regards

Mr Martin Mitchell

Consumer Service Officer

CreditExpert

 

I dont believe this company.Do they actually read the emails.

 

I just seem to be going round in circles.... I did reply to there previous email with a reply that highlighted there errors.

Oh well think i will leave it to the ICO, and prehaps i will issue a LBA to Gus

[Jesteruk]

Well got another reply this time after they "Investigated" my complaint

 

Dear JesterUK

Further to our recent correspondence, I have been contacted by Shop Direct Financial Services Ltd (Entry C2). They have confirmed that the details we hold are accurate and have requested that we retain the information on our database.

Shop Direct Financial Services Ltd have made the following statement " The absence of a signed agreement does not mean the debt does not exist, merely that it cannot be enforced".

Unfortunately I am unable to amend this information without the authorisation of the company in question.

The 'Notice of Dispute' will remain on your report for 28 days. It will then be removed, unless I receive further notification from you:

"THE CONSUMER HAS DISPUTED THE ACCURACY OF THIS ENTRY AND WE HAVE THEREFORE ASKED THE PROVIDER TO INVESTIGATE IT. GIVEN THAT THIS DATA IS DISPUTED, PLEASE TAKE CARE IF MAKING AN ASSESSMENT OF ANY KIND THAT MAY INCLUDE THIS DATA."

If you have any further queries or wish to discuss this further, may I suggest you contact the company concerned direct at the following address:

Shop Direct Financial Services Ltd, Aintree Innovation Centre, Park Lane, Netherton, Bootle, L30 1SL

Kind regards

Stephen Worley (SRW)

Consumer Service Officer

Client Queries

 

Looks like im going to have to remind Shop Direct of my s.10 request.......obviously no point in going on with experian they earn too much from the companies supplying info.

 

Views?

[gymguy]

Jester good luck with the Information Commissioner's Office (You will need it) in my experience they are slower than the banks at responding and only send through template holding letters anyway. They leave a lot to be desired.

 

Sparkie thanks for the advice re-Lowell I am writing to their head of compliance today asking for the information you mentioned under the fraud act. I suspect they don't have anything to send me. They sent me a template letter saying bank of Scotland transfered the debt to Lowell on...blah blah blah very generic and easy to fake.

 

Would Bank of Scotland have to supply Lowell with a legal document or deed of association and if so what info does it contain?

 

Thanks for your help guys.

 

Gymguy