Smel vs NEXT default

[doo]

Hi smel, just to let you know I have sent Surlybond's default letter to Next (adjusted to suit) and s.10/s12 notice and CCA. I have decided to go for the lot. Will also be contacting the 3 CRAs and after seeing what response I get from next will be contacting OFT and ICO. As my credit file was never updated since May 2005 (11 MONTHS AGO) and has never shown I have paid account off thus giving wrong info all this time I feel I have a case as according to fourth data protection principle it requires 'personal data is accurate and where necessary kept up to date' - they cannot have it both ways, we will see. Will let you know when I have update. Any comments welcome.

[smel24]

Doo, I think I need to read Surlybond's default letter - haven't seen this.

 

Also, I gather you're contacting the CRA's because Next have not updated your account which is now settled.

 

But I wonder if we contacted them regarding the fact that Next do not hold a signed CCA and therefore are breaching the DPA whether the CRA's would battle this for us? If anything, prior to putting in a claim it would back up all info when putting in the claim.

 

Think I'll start drafting a letter, timing is right as I've recently received all three credit files and have linked addresses that are wrong too.....

 

I'll post my letter to the CRA's here once ready to fire.

[doo]

Agree with you in regard to CCA. I am contacting CRAs and think I will do this in relation to Next not having signed CCAs, it is a good point, I did not really want to get CRAs to update information at the moment as I think it is good amunition for me that they haven't done this. Will await your next posting, will also do some digging around today.

[smel24]

Okay, I have written this based on my Callcredit credit file so I may need to change the terminology for Equifax and Experian as they all have various descriptions of account information.

 

This is to take on Next from another angle, to go direct to the CRA's and after reading Callcredit's "Your Credit File Explained" it wouls seem to me that Next don't have a leg to stand on. Callcredit clearly state that in the case of a default notice "the lender should give the account holder 28 days to comply with this request."

 

Anyway, here is the first draft, comments welcome:

 

Callcredit plc

Consumer Services Team

PO Box 491

LEEDS

LS3 1WZ

17th April 2007

REQUEST TO REMOVE INACCURATE DATA

Dear Sir,

I am writing to you in regards to data recorded on my credit file that I believe to be inaccurate.

I recently obtained my credit file from you (Ref: ********) and am concerned that there are inaccuracies connected to one account, Next Directory:

• The account does not state that it is closed; the account has been closed since the last payment was made and I have enclosed written confirmation of this from Next Directory.
  
• The Payment Status Codes still show as ‘D’ – Account is in a Default Status although the account was satisfied and settled in October 2005.
  
• A default notice was not provided and a copy has subsequently not been supplied by Next Directory.
  
• Next Directory has sent me a copy of their “original default notice” which is not a true default notice and additionally does not give the full 28 days notice to comply with a warning of a default based on the date of the default letter and the date of the default recorded; a copy of this and the covering letter from Next is enclosed.
  
• Next Directory do not hold a Consumer Credit Agreement signed by me (confirmation from Next Directory enclosed) and therefore I did not consent to any personal data about myself or this account to be passed on or processed in any way.

At no time did I consent and neither was it within the contemplation of mine that I did consent to the processing by Next Directory of that data in any manner which would be unfair or inaccurate or which in any way would breach The Data Protection Act 1998

Next Directory have been served a Notice pursuant to s.10 of The Data Protection Act 1998 by myself and have also been made aware of the above facts of inaccuracy.

The default and negative information held against me on the account is not only inaccurate but damaging to my credit rating and reputation.

I have made attempts to settle this matter with Next Directory directly but to date have not been successful.

Therefore in accordance with Schedule 1, Regulation 4(1) under Section 159 of the Consumer Credit Act 1974, and under the Data Protection Act 1998, I request that Callcredit remove the inaccurate data from my file to include the removal of the default and the removal of negative information regarding myself and this account.

Yours Faithfully,

[doo]

Good letter smel, I take it you took required action before the end of the 28 days requirement, if this is the case you may be successful with this. I will be following your lead but am just waiting for a reply from next re: cca and copy of default notice and terms & conditions that applied to my account so I think I have to wait a bit. Did speak to legal direct today who are getting a Trading Standards Officer to ring me in regard to Next not having CCA.

[smartmartian10]

smel24 - impressive letter might be using it myself in due course, thanks for posting it. I too am having fun and games with Next.

 

http://www.consumeractiongroup.co.uk/forum/store-cards/69695-next-directory-covered-cca.html

[smel24]

Well the time is up for Next, I didn't doubt they wouldn't reply to me. I can't afford the £150 fee to file a claim until next week so I'm going to concentrate on sending the CRA's this letter and see what the outcome is.

 

Doo let me know what the Trading Standards Officer had to say about Next and no CCA.

 

And what do you mean about taking required action before the end of the 28 days requirement? Are you referring to the fake default Next sent me?

 

Thanks srmjmm10, am watching your thread.....

[smartmartian10]

I have another thread going on how Next calculate their Service Charges (interest to the rest of the world!) Which may or may not be of interest to people

 

http://www.consumeractiongroup.co.uk/forum/store-cards/80872-next-directory-statement-interest.html#post760354

[doo]

smel, am still waiting for Trading Standards to get in touch with me but once they do you will be the first to know. Maybe one of us will have a breakthrough.

 

Have completely lost my train of thought on the 28 day thing, must admit my head is spinning at the moment, cap one are having fun and games with me at the moment, they have refused to pay my contractual interest so have written 3 page letter back to them. Also the court received their defence today and they are sending me out an Allocation Questionnaire, another thing to get my head round.

 

Anyway will update my next thread as well as have had some communication from them. All good fun

[smartmartian10]

smel24 have you complained to OFT? see post on my thread

 

http://www.consumeractiongroup.co.uk/forum/store-cards/69695-next-directory-covered-cca-2.html

[rhsymonds]

subscribing

[Yasmin]

Hi, any news on this yet? following closely....

[pugsley]

subscribing

[smel24]

Hey smartmartian10 I haven't complained to the OFT no, but may well do that, didn't really think too before but Next really are trying their luck.

 

I am posting off the letter to the CRA's tonight as I have been waylaid for the last month or so moving house, work etc. now I'm getting back on top of things!

 

I'll send off the letter to all three CRA's then follow up on the OFT complaint.

[saints12]

Hiya........... I have also written to the CRA's regarding Next. I have had a response from Experian stating that they have put a notice of dispute on my credit file and have written to Next so still waiting on a response but hopefully that will be quite soon.

[smel24]

Hi Saints, I'll subscribe to your thread....do you know when they wrote to Next?

Hopefully with a few of us doing it, Next may back down?

What I don't understand though is if Next never had a signed Credit Agreement by any of us, then they can't process our information so why can't the CRA's just go ahead and take off the info??

Questions, questions....!

[smel24]

Okay, this is the letter I have now adjusted and sent to all three CRA's this morning:

 

"

REQUEST TO REMOVE INACCURATE DATA

CREDIT FILE REF: *************

Dear Sir,

 

I am writing to you in regards to data recorded on my credit file that I believe to be inaccurate.

 

I recently obtained my credit file from you and am concerned that there are inaccuracies connected to one account showing a Default, Next Directory:

• A default notice was not provided originally and a true copy has subsequently not been supplied by Next Directory under s78 of the Consumer Credit Act.
  
• Next Directory has sent me a copy of their reproduced default notice which does not give satisfactory notice to comply with a warning of a default based on the date of the default letter (March 2005) and the date of the payment required to avoid a default (6th March 2005); a copy of this and the covering letter from Next is enclosed.
  
• Next Directory do not hold a Consumer Credit Agreement signed by me (confirmation from Next Directory enclosed) and therefore I did not consent to any personal data about myself or this account to be passed on or processed in any way.

At no time did I consent and neither was it within the contemplation of mine that I did consent to the processing by Next Directory of that data in any manner which would be unfair or inaccurate or which in any way would breach The Data Protection Act 1998.

 

Next Directory has been served a Notice pursuant to s.10 of The Data Protection Act 1998 by myself and has also been made aware of the above facts of inaccuracy.

 

 

Under section 87 of the Consumer Credit Act 1974 they have to provide a true signed copy of the original default notice. The default notice has to conform to the format of s88 of the CCA 1974. The information in the default notice has to be accurate and in its content conform to the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004.

 

If a default notice in the proper form is not served, the action cannot proceed. The case that supports this is Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998.

By processing my data without written consent in the form of a credit agreement, Next are in breach of The Data Protection Act 1998.

The default and negative information held against me on the account is not only inaccurate but damaging to my credit rating and reputation.

 

I have made several attempts to settle this matter with Next Directory directly but to date have not been successful.

 

Therefore in accordance with Schedule 1, Regulation 4(1) under Section 159 of the Consumer Credit Act 1974, and under the Data Protection Act 1998, I request that Experian Ltd remove the inaccurate data from my file to include the removal of the default and the removal of negative information regarding myself and this account.

 

Yours Faithfully,

 

"

[saints12]

Yip your letter is just the job. I will be contacting Experian this afternoon as they have given me a ref No and hopefully they will be able to give me an update will keep you posted.

[doo]

Hi Smel, great letter, would you mind if I took it as a template and just re-jig it a bit to suit? Am still waiting (as you will have seen from my thread) for a reply from Next and Experian, who are tackling it their end. Keep updating us, lets hope one of us gets a breakthrough.

[smel24]

Hi Doo - of course use the letter, the more the merrier!

Bit of not-so-good news though.

I had a letter from Experian this morning who say:

Thank you for your letter dated..., which has been brought to my attention in the Director's Office (whatever that is).

I am uncertain of when you began your correspondence with Next in relation to a request under Section 78 of the CCA 1974. However, you should be aware that a creditor is only required to comply with this type of request if the account is still open and active. Section 78(3) of the CCA 1974 advises that a request made under S78(1) does not apply to an agreement under which no sum is, or will or may become, payable by the debtor.

Next have advised you in their correspondence that when you opened your account you agreed to their T&C's which contain the relevant 'Fair processing notice'. They also advised that the T&C's are included within the Next Directory, a copy of which was sent to you every 6 months.

S87 of the CCA relates to the need for a default notice. There is no requirement within this section, or any other section of the CCA, for the lender to provide a true signed copy of the default notice at a later date.

I would also advise that the account information we hold actually belongs to the supplying lender. Only they can amend it or tell us to amend it for them. We cannot amend or delete entries without a lender's direct consent. As a licensed client of Experian each supplying lender is obligated to ensure that the information they provide us with is accurate.

The only instances where we would remove information without direct authorisation from the data provider is if a Court Order is provided that specifically states that an entry should be deleted or a ruling is made from a recognised regulatory body.

It is quite annoying that he does not mention the fact that Next admitted to not having a signed Consumer Credit Agreement by me. So if they say I agreed to the T&C's when I opened an account with them, where's the proof? Whether they can or will send a copy of the default they have no paper where I have signed at the time of opening an account!

Also, despite not having to send me a copy of the default seeing as the account was closed, they still did and the dates clearly left me no time to pay up - the 'default' was sent in March, gave me until March 7th to pay and the default was recorded in March!

In addition, this Experian guy seems to assume I wrote to them after it was closed (okay I did but he shouldn't assume) and also if it is clear that the default has been put there without doing so in the proper way then Experian are quite happy to leave it there - against the will of the law - just because it's up to Next what they put on there??!

Well, this was a back-up plan because I thought it may save time without going to the court but now it's going to have to be the court and a complaint to the Financial Ob'sman I feel.

In regards to the other two, Equifax need proof of address (I just moved house) and Callcredit have said they have contacted Next regarding this and upon receiving a response they will contact me.

I will try to check this myself but I need some reassuring - to place a default and record ANY data about me, do Next defintely have to have a signed agreement by me?

Very frustrated with this now.

[smel24]

I just had a thought...Experian says that creditors are only required to comply to a CCA request if the account is still open and active. So, what if I did a SAR because that includes closed accounts does it not?

 

I haven't done one because up until this point I didn't see the need.

[smel24]

Okay I have drafted up a letter in response to Experian:

 

Consumer Compliance Executive

Director’s Office

Experian Ltd

PO Box 8000

Nottingham

NG80 7WF

Dear Mr Hancock,

Thank you for your quick response to my letter dated xxx regarding incorrect data on my credit file.

In regards to the data on my file that I believe to be incorrect I thank you for your response however I am not satisfied that Next carried out the notice of default properly or with my consent for reasons of which I set out below.

I now realise that under Section 78 of the Consumer Credit Act (CCA), a creditor may not provide a copy of the original default notice once the account is closed and I thank you for bringing this to my attention. However, Next Directory did comply with the best of their abilities by sending me a copy of what I would have been sent (a copy of which I sent you in my previous letter).

Next Directory did not issue a notice of default properly: the copy of default notice states the date of the notice sent and the date of which I had to comply with action to remedy the default; these dates were less than 7 days apart and as section 88 of the CCA states:

-(2) A date specified under subsection (1) must not be less than seven days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection ( 1)) before those seven days have elapsed.

Next Directory do not hold a Consumer Credit Agreement signed by me (confirmation from Next Directory previously sent to you) and therefore I did not consent to any personal data about myself or this account to be passed on or processed in any way. Next Directory Terms and Conditions that may include text referring to the ‘Fair processing notice’ that you mention does not act as a signed credit agreement. Next Directory claiming that I agreed to these Terms and Conditions when I opened the account also does not act as a signed credit agreement where there is no signed agreement.

Without having served a default properly or with consent I believe Next Directory cannot record such data.

By processing my data without written consent in the form of a credit agreement, Next Directory are in breach of The Data Protection Act 1998.

 

The default and negative information held against me on the account is not only inaccurate but damaging to my credit rating and reputation.

 

I have made several attempts to settle this matter with Next Directory directly but to date have not been successful.

If I cannot resolve this matter through Next Directory or Experian I will be forced to contact the Office of Fair Trading, Information Commissioners Office and if needs be make a claim against this action I believe to be inaccurately recorded.

I look forward to your response.

What does everyone think? Mr Hancock did offer his direct email address and telephone number and while his tone seems fair enough to talk directly I feel I'd better keep all this in writing but I'll see what his next response says.

[smel24]

Just looking into my facts on my letter and I have just telephoned Consumer Direct supplied by the OFT website and they have told me that you do not have to have a signed credit agreement in order for a creditor to pass on data to the CRA's. By purchasing goods on credit and allowing them to take payments, that is your agreement.

 

I am still digging for more info though...

[Seahorse]

What they DO require is your explicit consent to process your data. If they do not, then they have no right to pass your data to anyone, let alone the CRA's.

 

Have you signed anything at all that might be construed as having given such consent?

 

From what I have read so far, the catalogue companies appear to operate like this...

 

You request a catalogue.

You make a first order using a form supplied (which does not appear to be any sort of document regulated by the CCA 1974, and does not require a signature).

Your order arrives, and they trust you to pay them back.

They send you statements so you know the state of your account.

You make the occasional order by phone.

etc, etc

 

Doesn't sound as if that procedure provides for them to process your data, especially if you write to revoke any implied consent.

 

Thoughts?

[smel24]

Hi Seahorse,

 

Thanks for your comments, I'm very confused. Can you tell me where it says that exactly? I have been deflated by what the Consumer Direct guy told me.

 

I don't know where to go from here.

 

Callcredit and Experian have both said that Next are leaving it there despite me telling them there was no signed agreement and that the copy of their default shows the dates gave me no time to repsond before they issued the default!

 

I'm concerned of taking it to court because I actually don't know my facts on this anymore.

 

Any help??

 

This is the last default on my account so I really want to get rid of it.