Taking Court Action Against Vodafone - Remove Default Notice

[R0b]

Re: Taking Court Action Against Vodafone - Remove Default Notice

I can see the ICO's point of view but I also disagree with it. Indeed the own ICO's guidance suggest that at least the default should be marked as 'in dispute' or something to that effect rather than as reporting you to have defaulted which gives the wrong impression, thus the information is not accurate.

To my mind, an investigation into fraud is a pre-requisite to criminal charges being brought against the suspected individuals who are alleged to have committed the fraud. Secondly, even if those persons charged are cleared of fraud, is not conclusive evidence that the account was set up by you - this all leads back to the fact that the bank has recognised that the signature on the DD mandate was concluded as being fraudulent, and it seems Vodafone have looked over that key and important piece of evidence.

It seems the ICO hasn't really grasped the issue here and as above, if the individuals have been arrested and are in custody pending a court appearance, the an an investigation must have concluded since there was sufficient evidence to bring such charges. Maybe I've missed something?! The other key issue to note in the letter is that the ICO also seems to understand that the information held on your account may be inaccurate, and the specific reference to the court case suggests that there is a real possibility the account and information is fraudulent.

Anyhow, their hands may be tied but the Courts are not, and you are back to where you were before Abbie. You either wait until the trial has concluded or, you take the risk and press ahead.

[AbbieA]

Re: Taking Court Action Against Vodafone - Remove Default Notice

I can see the ICO's point of view but I also disagree with it. Indeed the own ICO's guidance suggest that at least the default should be marked as 'in dispute' or something to that effect rather than as reporting you to have defaulted which gives the wrong impression, thus the information is not accurate.

To my mind, an investigation into fraud is a pre-requisite to criminal charges being brought against the suspected individuals who are alleged to have committed the fraud. Secondly, even if those persons charged are cleared of fraud, is not conclusive evidence that the account was set up by you - this all leads back to the fact that the bank has recognised that the signature on the DD mandate was concluded as being fraudulent, and it seems Vodafone have looked over that key and important piece of evidence.

It seems the ICO hasn't really grasped the issue here and as above, if the individuals have been arrested and are in custody pending a court appearance, the an an investigation must have concluded since there was sufficient evidence to bring such charges. Maybe I've missed something?! The other key issue to note in the letter is that the ICO also seems to understand that the information held on your account may be inaccurate, and the specific reference to the court case suggests that there is a real possibility the account and information is fraudulent.

Anyhow, their hands may be tied but the Courts are not, and you are back to where you were before Abbie. You either wait until the trial has concluded or, you take the risk and press ahead.

I've replied to the ICO with the points you make, as kind of a final plea and to ask them to explain their reasons to me if they disagree with those points. Thought I should also include this on the thread, response from Experian after having spoken to Vodafone when I lodged a dispute with the credit agency:

I did that, here is the response from Experian:

Thank you for your contact received on 04 January 2017

I'm writing in relation to your recent query with:

*Vodafone (Account Started 07/05/2014)

They've confirmed that this information is accurate, so I'm afraid I can't make any changes to it.

They have further stated that :

"The current overdue balance on the account £883.38 therefore the credit file is correctly recorded.The customer will need to contact Vodafone Customer Services on 03333040191 to arrange payment and discuss this further."

I understand that this may not be the outcome you were hoping for. If you'd like to discuss their decision, you should contact them directly. Their contact details are:

Vodafone Shelton Boulevard (off Forge Lane), Festival Park, Etruria, Stoke on Trent, ST1 5GP

Don't worry, if they send us any further instructions regarding this matter, we will do as they ask.

As this data was previously suppressed from your report it will be re-added now that we have received a response to the query that we raised on your behalf.

Our standard dispute statement will be removed from this information shortly. If you'd still like there to be a dispute statement on this information, I can add the following:

"The consumer has disputed the accuracy of this entry. Given that this data is disputed, please take care if making an assessment of any kind that may include this data."

Please let me know if you'd like this statement to be added to your report, where it will stay until you ask us to remove it.

Alternatively, you can add your own statement to this information. We call this a 'Notice of Correction'. If you'd prefer to add one of these, please let us know, in writing, the exact wording that you'd like to use. Please note that we can't add a statement that is longer than 200 words or one we think is defamatory, frivolous, scandalous or unsuitable for publication for some other reason.

If you require any further assistance, please do not hesitate to contact us.

I asked them to add the statement to say I dispute this, but the default still remains. Is there a thread on here for how to go about starting a civil case against them? I know I need to send the final letter and will be doing that this week, but I also need to quantify my claim and initiate the proceedings, two things I need advice on really.

[R0b]

Re: Taking Court Action Against Vodafone - Remove Default Notice

They've confirmed that this information is accurate, so I'm afraid I can't make any changes to it.

Total contradiction to what the ICO is suggesting in their email to you above where Vodafone are aware the information may be inaccurate, so it's not 100% certain it is accurate.

Well I think you need to take one step at a time and the first port of call is a proper letter before action. Yes you do need to quantify any damages you are seeking but that is difficult because each case for damages will vary depending on the specific facts of the case. For example there is one case where the creditor applied a default but was immediately removed after a month or so and he was awarded £750. Yours has been on for some time now and I would say it is within the realms of possibility to try and obtain up to £1,500 or even more based on Vodafone's conduct and conflicting information but also overlooking clear evidence from your bank, all of which could be aggravating factors. Any damages you seek will of course increase the amount you have to pay for the application. So if you want a modest sum then you could opt for £750 and you would pay £60 to issue the claim and £80 to proceed to the hearing if it gets to that stage. Or even £500 which would cost £35 to issue the claim and £55 for the hearing fee.

All of the above would be a reasonable sum of money that you could expect to get from Vodafone if you are successful. You could even suggest in your letter of claim that you are prepared to accept X if they accept within 14 days but if you are forced to issue a claim then you will pursue the full amount of damages that you are seeking.

Does that help?

[AbbieA]

Re: Taking Court Action Against Vodafone - Remove Default Notice

Yes that's a massive help, thanks!

I believe there are plenty of aggravating factors in this case that would increase the amount claimed. Do you have any details around the case where the guy was awarded £750? I assume he had to justify this amount and give a cost breakdown, or was this just a sum for 'compensation' without going into detail about actual losses, stress caused etc? I think I should include this in my final letter, bearing in mind I have already sent two letters before action that have been ignored. This was the first one (with the second being very similar):


****************
14^th of February 2017
Customer Relations Manager
Vodafone Limited
The Connection
Newbury
Berkshire
RG14 2FN
Reference: **************** Fraudulent Vodafone Account

Dear Sir/Madam,

As it has not been possible to resolve this matter amicably, and it is apparent that court action may be necessary, I write in compliance with the Practice Direction on Pre-Action Conduct. Please accept this as a formal letter of claim in accordance with the Civil Procedure Rules 1998.

Claimant
*******************

Defendant
Vodafone Limited
The Connection
Newbury
Berkshire
RG14 2F

Summary of Facts

On 07/05/2014 a Vodafone mobile phone contract was created using my personal details obtained through identity theft. This was reported to the police on the 8th July 2015 (who provided the crime reference number NFRC150601097082), my bank and Vodafone. My bank, having conducted an investigation, determined that the signature used to set up the Direct Debit Instruction was fraudulent. As a result of this, the bank recovered all monies paid to Vodafone.

Since then, Vodafone have not accepted that this account was created fraudulently and have continued to send correspondence to an unknown to me address provided by the fraudsters when they created the account. Vodafone have also applied default notices to my credit record and have refused to remove them (see Siebel Account Notes pg. 9) I have made repeated requests (see Crystal Account notes) asking Vodafone to supply me with details of any fraud investigation conducted, the identification documents and proof of address given when the account was opened and all other information pertinent to the fraud investigation and I have numerous email responses (see Crystal Account notes) where Vodafone have refused to supply me with these.

In October 2016 I sent a letter advising Vodafone that I plan on pursuing them through the Consumer Ombudsman and will take legal action if necessary if they refuse to remove the default notices from my credit file. Vodafone confirmed receipt of the letter but refused to remove the default notices or provide me with the information I previously requested. In December, I made a request for information under the provisions of the Data Protection Act 1998 and obtained documents relating to the account. This was supplied on the 23rd of January and showed that Vodafone had been told by my bank that the Direct Debit Instruction contained a fraudulent signature (see Crystal Account Notes pg. 13). It also has all my correspondence and repeated requests for further information. It specifically does not include details of the fraud investigation or the identification documents and proof of address used to open the account.

Basis of Claim

Based on the evidence provided by Metropolitan Police Mobile Phone Crime, ActionFraud and Natwest bank, and the lack of evidence provided by Vodafone despite persistent requests, I assert that Vodafone have been negligent in allowing this contract to be opened with insufficient documentation and have incorrectly applied a debt and default notices to my name/credit score.
I further assert that the fraud investigation carried out by Vodafone has been insufficient. On pg. 14 of the Siebel Account Notes it is stated that ‘the usage on this account is also normal, normal calls to UK landlines and mobiles, no fraudulent usage’ yet on pg. 17 and pg. 19 of the Crystal Account Notes it shows that this account was referred to the Fraud/Credit & Collections team in June and July of 2014 due to high usage in ‘more than £100 in 1 day’ in Spain and Portugal on separate occasions. I intend to base my claim on the following documents:

Vodafone 689728830 Crystal Account Notes
Vodafone 689728830 Siebel Account Notes
Letter dated 30/10/16 Reference: ***************

Amount of Claim

I am not liable for the outstanding debts of £883.38 on the account and the defaults on my credit file should be removed immediately. In accordance with the Practice Direction on Pre-Action Conduct I request that Vodafone supply myself with:

Copies of the ID and supporting documents (both proof of signature and proof of address) used to open this account
The fraud investigation carried out by Vodafone, as referenced in both the Crystal Account Notes and Siebel Account Notes provided by Vodafone, in its entirety.
I will also be claiming for the £10 charged by Vodafone to access my information obtained under the provisions of the Data Protection Act 1998 and any and all costs associated with taking this matter to court.


Next Steps


You are expected to acknowledge this Letter of Claim within 14 days of the date of this letter and either remove the debt and default notices from my file in full and provide me with the documentation requested above or provide a detailed letter of response within 28 days.

Your attention is drawn to the Civil Procedure Rules 1998 and in particular the Court’s power to impose sanctions if you fail to comply with the same. If you ignore this letter or fail to provide a detailed letter of response within 28 days, Court proceedings will be issued against you and this letter will be brought to the attention of the Courts in their dealing with costs. Your non-compliance with the Rules may increase your liability for costs.


Alternative Dispute Resolution


I am prepared to consider mediation and other forms of dispute resolution procedures prior to issuing Court proceedings. If you are a member of a trade association that offers this service or you wish to nominate a mediator, please forward me the details for my consideration. Please note, these details need to be supplied within the 28 day deadline.

Yours faithfully


***********************


My final letter has been drafted in this format, though I plan to better quantify my claim in the 'Amount of Claim' section and to fill in more details in the 'Summary of Facts'. And will obviously revise based on any advice I receive on here. Thanks again!

[MIKE770]

Re: Taking Court Action Against Vodafone - Remove Default Notice

seperate each para if I received that I treat it as mumbo jumbo

[slainte caragh]

Re: Taking Court Action Against Vodafone - Remove Default Notice

again please don't shoot the messenger here, I am playing devils advocate.

I can appreciate that they have fouled up to the worst degree but to make sure all the ts and crossed and the Is dotted, I suggest tagging @Diana M and asking her, if there is a legal case of fraud going on, could the OP end up liable for any costs of taking action should the courts decide they have to wait for the fraud case to end?

I am not saying they will say so, just think this should be addressed. The last thing I want for you is to take Vodafone to court and be told "no, this will jepordise the fraud case, throw it out!"

Why have someone who works for a law firm and not pick her brains eh?

[R0b]

Re: Taking Court Action Against Vodafone - Remove Default Notice

Haven't looked at your letter yet but will do later.

The case in question is Halliday v Consumer Creation Finance, and I correct myself the default was recorded over an 8 month period not one month. This case however is slightly older where in order to get compensation you had to prove loss, however this is no longer the case as newer case law says you don't need to prove loss you can claim distress directly.

http://www.macfarlanes.com/media/127...ection-act.pdf

[R0b]

Re: Taking Court Action Against Vodafone - Remove Default Notice

again please don't shoot the messenger here, I am playing devils advocate.

I am not saying they will say so, just think this should be addressed. The last thing I want for you is to take Vodafone to court and be told "no, this will jepordise the fraud case, throw it out!"

Why have someone who works for a law firm and not pick her brains eh?

They won't throw it out, worst case scenario the claim is stayed. But I suggest you read this case Akcine Bendrove Bankas Snoras v Antonov and another [2013] EWHC 131(Comm) for a full run down of the principles of staying the claim. The court has discretion to stay proceedings until conclusion of the criminal trial but "is a power which has to be exercised with great care and only where there is a real risk of serious prejudice which may lead to injustice"

[R0b]

Re: Taking Court Action Against Vodafone - Remove Default Notice

On 07/05/2014 a Vodafone mobile phone contract was created using my personal details obtained through identity theft. This was reported to the police on the 8th July 2015 (who provided the crime reference number NFRC150601097082)

How did you find out that a Vodafone account was set up in your name? Did you give anyone your details to a survey type person as suggested in the criminal trial Vodafone has made reference to?

[warwick65]

Re: Taking Court Action Against Vodafone - Remove Default Notice

Something struck me

You say bills were sent to an unknown address but the default was placed against you at your current address.

I also assume the contract was opened in a store, I don't think I have ever signed a DD to Vodafone - all done over the phone

[AbbieA]

Re: Taking Court Action Against Vodafone - Remove Default Notice

How did you find out that a Vodafone account was set up in your name? Did you give anyone your details to a survey type person as suggested in the criminal trial Vodafone has made reference to?

Yes sorry, that doesn't read as intended. The contract was set up using my personal details, which were most likely obtained from the questionnaire as it matches the M.O. described by the Police. I realised the account was set up in my name when I saw that money had been coming out my account, gutted that it took me a year to realise though!

With regards to the Halliday vs Creation case (thanks for showing me this!), I see that the compensation was awarded for distress. The court rejected substantial compensation in line with injury to feelings awarded in discrimination cases but in this case the breach arose from a mechanical error. It does not mention whether or not the company removed the default when they were made aware that it was made in error, but it does mention the data controller proving that they have taken reasonable care to comply with the DPA as a defence. I would say my whole argument is that they didn't.

Would it also be right to claim for my time wasted on top of the distress caused? And direct financial loss from having to hold off on purchasing a house? Would this be quantified as a percentage of the total cost to rent the house we have been living in over the past year or maybe as a difference in house prices over the year? Would a mortgage agreement in principle from a bank from last year be enough to prove that we were looking at buying a house then? I am also told that a poor credit score can also affect your insurance premiums, though I am not sure how this is worked out.

The other thing not mentioned in the Halliday vs Creation case is at what point the default was removed and how that was handled. I assume this was a court case brought purely after the incorrect default had been rectified and its possible that the company corrected it immediately and were full of apologies?

[AbbieA]

Re: Taking Court Action Against Vodafone - Remove Default Notice

Something struck me

You say bills were sent to an unknown address but the default was placed against you at your current address.

I also assume the contract was opened in a store, I don't think I have ever signed a DD to Vodafone - all done over the phone

Yes I have not received any bills to my home address (which is actually my parents and the address the default was placed against). My parents are very switched on (unlike me!) and have not missed any mail. When I initially discovered the fraud I had a really hard time accessing the account over the phone due to not being able to pass the DPA checks. Then when I finally got them to carry out the first fraud investigation that was sent to an unknown address and I never received it. I find this even stranger as I believe the address I gave on the questionnaire was my term time address whilst I was at uni.

The Vodafone account notes that I obtained confirm that the contract was opened in a carphone warehouse store, though Vodafone have always refused to supply me with any details of this and haven't confirmed this when questioned.

[warwick65]

Re: Taking Court Action Against Vodafone - Remove Default Notice

I find it all really confusing

You had a term time address which you say you gave to some sort of survey ( can you remember what it was about?) and your permanent address ( parents) yet the account was opened at a third address unknown to you at all.

Somehow VF traced you to your parents address where you say they placed the default - how on earth did they manage that?

Do you still live there?

Have you thought of sending a SAR to CPW ?

I must say you are a very fortunate student not to miss £800 coming out of your current account - I was only complaining loudly the other day that breakfast has gone up by 20% over the summer in the Library cafe but that's by the bye

[AbbieA]

Re: Taking Court Action Against Vodafone - Remove Default Notice

I find it all really confusing

You had a term time address which you say you gave to some sort of survey ( can you remember what it was about?) and your permanent address ( parents) yet the account was opened at a third address unknown to you at all.

Somehow VF traced you to your parents address where you say they placed the default - how on earth did they manage that?

Do you still live there?

Have you thought of sending a SAR to CPW ?

I must say you are a very fortunate student not to miss £800 coming out of your current account - I was only complaining loudly the other day that breakfast has gone up by 20% over the summer in the Library cafe but that's by the bye

It is confusing! And I'm not even 100% certain that thats where my details were taken from, it just seems to fit the bill. They could have been stolen from my bins for all I know but that seems less likely. In answer to your questions the survey thing was market research about a load different brands, my awareness of them, if I'd used them, seen them advertised etc etc I don't think there were any mobile phone brands in there but were all major brands and the questionnaire was very convincing (well written with brand logos etc). I know that shouldn't have made a difference! From what I remember there was the questionnaire with a personal details section and a separate form for the payment, which I may have put my parents address on but don't believe I did. All this information was, of course, given to the police when the fraud was reported.

As for the payments coming out, you have to bear in mind that I did this questionnaire at some point during my final year (2013/14). The account wasn't set up until July 2014 by which time I had graduated and was in full time employment. I know that doesn't excuse me for being slack and not noticing, but I also have rent, gym, O2 phone contract, car insurance etc etc coming out each month. I am kicking myself for not noticing but doesn't change the fact that I didn't set up the contract so indeed it is by the bye.

As for the SAR to CPW, no I hadn't considered that. Do you think they hold that information? I will look into making a request in the morning, will be worth doing before I instigate legal proceedings.

[AbbieA]

Re: Taking Court Action Against Vodafone - Remove Default Notice

So, I have written out my SAR request to CPW following their instructions online but have some issues. Firstly, they say that they only accept cheques and I do not have a cheque book (will sort that this week). Secondly I am providing them with proof of (my parents) address, though I don't know if that's what they have on the system. It could be my term time address which I no longer live at, my parents address or a mystery one. They also ask for the CPW account number which I don't have, but will send them the Vodafone one.