Re registering of default by DCA and Original Company (Barclays)

[adajam4]

Hi there, this is my first time post so I hope I can get a bit of help with this.

 

In a nutshell Barclays sold my debt to a DCA and registered the default

in both their name and in the DCA name with a 75 day discrepancy of the default date.

 

After settling with the DCA Barclays then removed their "duplicate" default.

 

A year later I have my mortgage with a sub prime lender and am now able to move on to my current bank provider,

I check my credit file and there is a default from Barclays for the original default amount

as well as that of the DCA marked as settled,

seems to me they are trying to make my life as hard as possible.

 

I have constructed this letter, before I send any pointers would be much appreciated, or should I not bother?

 

DCA Reference: XXXXXXX

Original Lender: Barclays Bank PLC

Account Type: Barclays Additions (Incorrect was a student account)

Account Number: XXXXXXXXXXX (According to DCA)

Default Amount: £1791.94

 

Further to my previous letter sent 9th April 2012 (enclosed)

 

I am writing to seek removal of the re registered incorrect use of my personal data

as well as compensation for your continual defamation of my credit report

that is causing me increased financial costs.

 

I am in the process of applying to move my mortgage from a sub prime to near prime

or even high street lender yet your continual re registering of incorrect data is making this impossible.

 

This is your final opportunity to settle this matter without legal action.

 

In accordance with the ‘overriding principles’ I submit herewith the draft particulars of claim.

 

1. The Claimant originally defaulted on a student account held in 2009

– the debt was subsequently passed on to a debt collection agency who registered the debt,

ensuring the Defendant removed the original entry on the Claimant’s credit file.

 

2. After the Claimant had settled the default with the Defendant’s chosen debt collection agency

the Defendant re-registered the default with an incorrect default date

whilst the appointed debt collection agency also had the same debt registered.

 

3. On 9th April 2012 the Claimant wrote to the Defendant outlining the false registering of the debt

whilst it’s third party debt collection agency had also registered the debt.

Further to this, the Defendant had registered the debt with an incorrect default date of 75 days.

4. Further to sending a personal letter and using CreditExpert

(Ref: EXP/XXXXXXX the Defendant removed the inaccurate information on the Claimant’s credit file.

5. On 19th May 2013, during a check of the Claimant’s credit reference file prior

to an application from sub prime to near prime mortgage, the Claimant noticed two entries relating to the Defendant,

one in the Defendant’s name in respect of the said account.

The Defendant’s entry was not on the Claimant’s credit file when it was previously checked on 31st March 2013.

 

6. The entries allege that the total amount owed by the Claimant to the Defendant is £1791.00.

The entry in question shows the account to be ‘in default’.

 

7. The Claimant claims that the entries are negligent misrepresentations in that the Defendant

has no grounds on which to make such entries, and knew or should have known this by 9th April 2012 at the latest.

 

8. The Claimant further claims that the Defendant is in breach of the Data Protection Act, 1998

(the Act) in that

a) The Defendant is a ‘data controller’, the Claimant a ‘data subject’

and the data ‘personal data’ as defined in s.1 of the Act

b) The Defendant has continued to process the Claimant’s personal data, s

uch processing having continued up to at least 31st May 2013.

f) The Claimant claims that such processing is unlawful in that it breaches Principles 4 and 5 of the Act.

h) Principle 4 states that ‘Personal data shall be accurate and, where necessary, kept up to date’.

The entries in the Claimants credit reference file are neither accurate nor up to date,

which the Defendant knew or ought to have known by 9th April 2012 at the latest.

i) Principle 5 states that ‘Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes.’ The Defendant had no reason to retain the Claimant’s personal data beyond the 9th April 2012 at the latest.

 

9. As a result of the unlawful processing and/or the negligent misrepresentation,

the Claimant has suffered damage, namely associated costs of a sub prime mortgage,

in corresponding with the Defendant regarding the alleged debts

and the entries on his credit reference file, distress and inconvenience.

 

10. The Claimant respectfully seeks;

a) An order under s. 14 of the Act, subsections 1 and 4, that the inaccurate data be rectified,

blocked, erased or destroyed.

 

b) An order under s. 14 of the Act, subsections 3 and 5, that the Defendant notify third parties

to whom the data have been disclosed of the rectification, blockage, erasure or destruction of the data.

 

c) Under s. 13 of the Act, subsection 1 the Claimant claims compensation for damage caused

as a result of the unlawful processing, quantified as:-

1. Postage, stationary and printing costs £8.00

2. Costs of membership of ‘Credit Expert’ @ £9.99 per month,

12 months £119.88 to ensure that the entry removed and are not reinserted

3. Increased mortgage payments of £129.00 per month unlawfully registered on the Claimant’s credit file

(based on the current cost of sub prime mortgage Vs near prime mortgage borrowing level)

d) Under s.13 of the Act, subsection 2 the Claimant claims compensation for distress caused

by the unlawful processing, at the discretion of the Court.

e) Additionally, or in the alternative, the Claimant claims damages for negligence causing general loss to credit,

at the discretion of the Court.

 

You should note that, if the matter does proceed to court, I will be relying upon,

inter alia, the case of Kpohraror v WoolwichBuilding Society [1996] C.L.C. 510

with regard to the level of damages to be awarded.

 

Should you not be aware of the case, appropriate damages were set at £1000 plus the default amount,

representing in my case a total sum of £2791.94, and therefore a total claim of £3,306.82

(based on 3 months consequential loss with regards to my mortgage).

 

If a cheque is received within the next fourteen days, I

 

would however consider a reasonable sum to be £500.00 in respect of the above claim,

subject to the previously mentioned undertaking regarding the entry on my credit file.

[slick132]

Hi Adajam and welcome to CAG

 

I see no problem in trying to resolve this issue and seek compensation in the manner you describe.

 

Send the letter to Barlcays London HQ by RM Signed-For delivery. Address is here - http://www.consumeractiongroup.co.uk/forum/showthread.php?208-Email-or-contact-details-for-Barclays&p=545557&viewfull=1#post545557

 

See how they respond and let us know.

 

[adajam4]

I have sent the letter to Barclays today, I will sit and see what they come back with.

[adajam4]

When giving 14 days, is that just in receipt of letter or 14 working days?

[slick132]

Hi Adam,

 

Give them 14 days from when you send the letter and chase them for a response if they fail to comply.

 

[adajam4]

After separately opening a query through Experian (who are completely useless) Barclays have told them that the data is accurate and that they refuse to update it.

 

I cannot believe that Experian can be so spineless and accept that, further more, I cannot believe Barclays could be so stupid.

 

I am honestly considering just taking them to court now, they have had the opportunity to rectify this issue now, so it is not reckless, it is pure defamation of character.

[slick132]

Hi Adajam,

 

If Experian continue to carry adverse credit data after you have warned them about it's inaccuracy, that's their prerogative. If Experian are happy to trust Barclays in this way, then they have to also accept the risk of doing so.

 

If you take action against Barclays, you may also choose to name Experian as co-Defendant.

 

As well as, or instead of, the Kpohraror v Woolwich case, have you read the case of Durkin v DSG Retail and HFC Bank which dealt with consequential loss.

 

Wait for a full response from Barclays.

 

[adajam4]

14 days since proof of receipts... Should I send another letter, marking this one as notice before litigation, explaining that they have rejected to remove the default, which in my opinion changes it from negligence to defamation as they are now aware. If after 14 more days there is no response start litigation?

[slick132]

Hi Adam,

 

Only threaten to litigate if that is your true intention.

 

Send them a reminder headed "Letter Before Action" giving them a final 14 days to respond and remedy the situation.

 

Check your CRA file to see if the marker is still showing. If it is, take a Screen Shot and save it as evidence of the CRA's continuing failure to remove the incorrect adverse data.

 

When writing to the bank, you can say you consider their negligence has now become more serious due to their failure to remedy their error. You can use the word "defamation" if you want.

 

However, if it comes to court action, you need to perhaps avoid the "D" word as it can put your claim into a very different category which is beyond the scope of the Small Claims Track. See post #139 here - http://www.consumeractiongroup.co.uk/forum/showthread.php?373594-Bounced-Cheque-Cause-for-Action-for-Damages&p=4259918&viewfull=1#post4259918

 

[adajam4]

I am more than willing to take them to court, thank you for the heads up on the wording of defamation I will ensure that I do not use that.

 

This is not about the money really, it is much more of a vendetta, I admit to the mistakes made in the past, however for someone who has reformed their continual negligence hounds me - when now, I owe them nothing.

 

I am unsure at to whether I would even accept £500.00 now, I would rather have my day as there is no way any court could not agree that they have acted outside of the law, on their terms (even ignoring the law when presented to them) on more than one occasion.

[slick132]

Noted and it might be an idea to see how MadPriest gets on on that case.

 

[adajam4]

After 16 days I have heard nothing, so have sent the letter before action.

 

Is it usual for Barclays to simply ignore letters?

[slick132]

Yes, they're not the best at replying promptly and it's always best to allow them a bit extra to catch up !

 

[adajam4]

Yes, they're not the best at replying promptly and it's always best to allow them a bit extra to catch up !

 

 

Had letter back from Barclays and they have given a reference number and a contact there.

 

The letter requests - for the letters sent previously to be sent - again - as well as a copy of my credit report. I am a little apprehensive about giving my full report, it contains information sensitive to me - why do they need it all? I am going to send back a letter with the copies of the previous two along with the entries on my file, not the whole file, relating to them. Would that be acceptable and any further advice would be appreciated.

[citizenB]

Had letter back from Barclays and they have given a reference number and a contact there.

 

The letter requests - for the letters sent previously to be sent - again - as well as a copy of my credit report. I am a little apprehensive about giving my full report, it contains information sensitive to me - why do they need it all? I am going to send back a letter with the copies of the previous two along with the entries on my file, not the whole file, relating to them. Would that be acceptable and any further advice would be appreciated.

 

You can redact anything that you do not wish them to see - presumably they only need to see the defaults they are placing and nothing else. TBH, I don't understand why they need to see your copy - they have access to your report anyway ??

[adajam4]

You can redact anything that you do not wish them to see - presumably they only need to see the defaults they are placing and nothing else. TBH, I don't understand why they need to see your copy - they have access to your report anyway ??

 

Thank you for that.. I will send the redacted version (sp?). Out of interest though - how would they still have access to my file if I have no account with them anymore?

[citizenB]

Creditors can look at anyone credit file, as I understand it.

[slick132]

Hi Adajam,

 

Barclays have full access to all your personal data so I wouldn't worry about this aspect at all.

 

Supply what they ask for - ie the copy letters and the CRA report.

 

Tell them you are unhappy with the delays which have occurred so far and they have a final 14 days to resolve your complaint and pay you the £500 which you are still prepared to accept.

 

If they fail to resolve the issue as you require, including their undertaking to correct the CRA data, within 14 days, you will file court action without further warning and your claim will not be limited to the nominal £500 which you will currently accept.

 

[adajam4]

Thank you for the responses. Would email with a read report be an acceptable form of communication from here on in? The cost of printing and sending all of this information is really starting to add up as well as all of the time it is taking - especially as I have all documentation as digital copies, or would this not be advisable?

 

Thank you.

[slick132]

Emails are acceptable as a means of communication as you can keep copies for evidence when needed.

 

The Read Report is not always reliable as proof of receipt as the recipient has the choice to either acknowledge receipt, or not.

 

I would say that, once an email address has been used and you've had replies from it, you're ok to keep using it.

 

[adajam4]

I will request a reply in the body of my email and call if I don't get it by the end of the day. Saves me time and money in getting it to them and I can push on if necessary sooner.

 

I would like to say once again I appreciate the support that this forum offers, should a satisfactory result be reached I fully intend on donating to the upkeep of a fantastic resource.

[adajam4]

Well, a little update...

 

After no reply and ringing the supplied number to a voicemail stating the person was in but unable to collect my call, they weren't in until today. Confirmation received so countdown of 14 days has started.

[adajam4]

I have further news, I have received an offer of Full and Final settlement for £250.00. They have already removed the incorrectly added default.

 

I am tempted, but also feel a little underwhelmed as they have clearly looked at it and gone, offer half and see if he bites. It is easier than court action and ultimately the end goal of the incorrect default has been cleared.

 

Should i accept this, or continue to persevere in the hope they offer more?

 

The terms include

 

i. This is in full and final settlement of the Claim and is made without admission of liability. This settlement will also cover any other claims that may be said to arise out of the same facts.

 

2. You acknowledge that this agreement is a legally binding obligation and you confirm that you have the authority to enter into it.

 

It also includes an NDA,which as I haven't signed, I am not obligated by yet.

[slick132]

Hi Adam,

 

The question you pose now is quite different to your attitude in post #10 but it's good that you are considering your options carefully.

 

A crucial element of your claim could be proving that you have suffered consequential losses as a result of the incorrect CRA data. Can you quantify the amount of such losses.

 

You can also claim damages for the wrongly posted data but that may be decided at the discretion of the judge.

 

Worst scenario is if you decided to take court action but the judge decided you are only due £250 or less. You could end up responsible for the banks costs although this exposure should be limited to some extent.

 

Ultimately, the decision must be yours.