Advice needed on compensation for a wrongful default entry!

alley-cat_2

Hi MSE’s I need some help please,

I have been given a default on my credit file from an old mobile phone company last year. They didn’t send me any notification (default notice) and just applied it without telling me! I am about to write to them to get it removed according to the consumer credit act; section (76,78,79, 87, 88, 89).

I would like to find out how to claim compensation as due to this default as I was unable to obtain any form of credit therefore I had to use a cheque cashing company and a loan company and pay their hefty fee’s that I would not of had to use if it wasn’t for this default (I was entitled to a £3,000 student low interest overdraft)

The most important thing is getting this default removed, but due to them I estimate that I am about £1,700 worse off! :mad:

I found this on consumer action group
http://www.consumeractiongroup.co.uk/forum/showthread.php?t=10656

Can anyone suggest where to start?

file_wizzard

The Information about the alleged default registered on your credit file is not governed by the CCA S. 77 / 78 Ect. This is related to the enforcement of a debt itself. If the creditor can not provide CCA information then the debt is unenforceable, however the data entry on your file will remain.

If you want to request information in relation to the data that has been submitted to the CRA’s then you will need to make a subject access request under S.7 of the data protection Act.

In terms of obtaining compensation this would be very unlikely as you would need to prove that the data controller has wilfully and knowingly published data which he knows to be untrue, or with the intent to cause harm.

The best you can hope for in this situation is the removal of the default itself if you can prove that the data controller has breached their duty’s under the Data protection act.

Nb. As a side note Mobile phone contracts are not always governed by the Consumer Credit act ( although a credit search is often performed) they in fact fall directly under contract law, so a CCA request is not always the best way to aproach any dispute.

alley-cat_2

76 Duty to give notice before taking certain action
1/ The creditor or owner is not entitled to enforce a term of a regulated agreement
by—
c/ treating any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred,

except by or after giving the debtor or hirer not less than seven days’ notice of intention to do so.


87 Need for default notice

1/Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,

a/ to terminate the agreement, or

d/ to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

88/ Contents and effect of default notice
89/ Compliance with default notice


I thought a Subject Access request was only for bank accounts etc, but what would this achive, I have all of my bills and letters they sent the dca, and I know 100% that there was no default notice, (when I argued it last year they told me they didn't have to send me one!)

file_wizzard wrote:

.Nb. As a side note Mobile phone contracts are not always governed by the Consumer Credit act ( although a credit search is often performed) they in fact fall directly under contract law, so a CCA request is not always the best way to aproach any dispute.

I heard that this may be classed as a running account, which is why I was looking into section 10 of the cca "10 Running-account credit and fixed-sum credit "

file_wizzard wrote:

.In terms of obtaining compensation this would be very unlikely as you would need to prove that the data controller has wilfully and knowingly published data which he knows to be untrue, or with the intent to cause harm.

The best you can hope for in this situation is the removal of the default itself if you can prove that the data controller has breached their duty’s under the Data protection act.

If it turns out that they was supposed to inform me under the relavent act then that should show that they was aware of the need for a default notice

file_wizzard

I think the first thing you need to check is the T&C's of your orginal account, you may well find that it is not actually regulated by the CCA, in which case making a CCA request to the lender will not get you very far as they will have no obligation to comply with your request as no CCA regulated agreement was ever in place.

The reason that you need to make a S.7 DPA request is that if the lender fails to remove the notice, then your next step will be to escalate the matter to the Information Commissioners Office, and they will only investigate breaches of DPA compliance, and will have no interest in Contract Law or CCA breaches.

In terms of a Civil Action for Defamation / consequential loss, this would be a very expensive and tenuous route, the Role of the ICO was created to govern DPA complaints without the need for court time to be taken up with S.10 / S.13 DPA cases.

The ICO has no power to rule on compensation or loss claims, however they can, and will enforce compliance to the DPA and its processing requirements.

alley-cat_2

Ok, I'll have to read the t&c's again before I do anything. When you say "if the lender fails to remove the notice, ..." do you mean remove the default entry from my file?

By asking for a s7, how does this then mean they will remove the default, I understand that if they don't comply then I can make a complaint but what will they be sending me that will help my case?

Sorry I really confused now

file_wizzard

It's More to do with what they dont send you!, basically you should specifically request the default / termination notice, and by wrapping this up in the context of S.7 DPA request you are covering yourself should the ICO, or even a court ask what reasonable steps you took to obtain proof that the termination notice was actually issued.

If you ask for a default notice in compliance with the CCA and your agreement wasn’t actually regulated in this manner then you are basically wasting your time, whereas with a S.7 request this covers ALL personal data regardless of the type of agreement entered into.

The overriding thing you are looking to prove is that the notice wasn’t served in compliance with the terms and conditions of the contract you had, be this a default notice compliant to the CCA, or a termination notice in compliance with the relevant Contract law provisions.

If the other party is unable to document that the default / termination notice was correctly served then they have not only breached their requirements to notify you, but will also be in breach of the DPA as they can not verify the accuracy of the data they are publishing, and this after all is your case for its removal.

I understand where you are coming from in terms of the original CCA request, and I have seen other sites giving template letters making requests specific to CCA regulated agreements (i.e loans, credit cards) however whilst these are fine if the lender then agrees to amend the data they are not very helpful if the lender plays hardball with you, as if you then have to escalate the matter to the ICO they will not necessarily take into account any requeste made under the CCA, as their primary function is review of DPA compliance.

I appreciate it can all seem very complex, but the important thing to remember is that you are contesting the publishing of data, not the enforcement of an agreement. Hence the overriding requirement to refer to the DPA.

alley-cat_2

Ahh now I understand, I thought before you meant that if they weren't covered under the cca then that was it! but all contracts are covered under a relevent act and all acts would require the creditior to notify the consumer prior to issing a default.

If they had told me I would have paid and there would be no proplem.

Thank you very much for explaining everything to me. By the way I need to enclose £10 in my request dont I?

file_wizzard

alley-cat wrote:

Ahh now I understand, I thought before you meant that if they weren't covered under the cca then that was it! but all contracts are covered under a relevent act and all acts would require the creditior to notify the consumer prior to issing a default.

If they had told me I would have paid and there would be no proplem.

Thank you very much for explaining everything to me. By the way I need to enclose £10 in my request dont I?

The £10 is the maximum they can charge, however there is no set requirement to charge this or any fee at all.

The best way to word it would be something along the lines of ;

“Further to this notice please advise of any fee you may require to action this request. (mindful of the £10 GBP maximum allowed under the relevant statutory provisions)”

alley-cat_2

Ok, thanks for your help, hopefully this should work