Taking Court Action Against Vodafone - Remove Default Notice

[AbbieA]

Hi Guys,

Sorry if this is in the wrong place but this is my first post on the forum, moderators feel free to move if necessary.

I am in the middle of a long battle with Vodafone over a fraudulent account set up in my name back in 2014. This was discovered in July 2015 and immediately reported to the Police and ActionFraud who provided a crime reference number. It was also reported to my bank who, 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. They have also applied default notices to my credit record and have refused to remove them. I have made repeated requests asking them 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 where they have refused to supply me with these.

In 30/10/16 I sent a letter to Vodafone by recorded delivery advising 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 score. They confirmed receipt of the letter but refused to remove the default notices or provide me with the information I requested. As a result I contacted the consumer ombudsman who stated that, having previously investigated the account when I was still gathering evidence and subsequently closed their investigation, will no longer investigate.

On 12/12/16 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 and that the account had been referred to their internal Fraud team numerous times. It also has all my correspondence and repeated requests for further information but specifically does not include details of the fraud investigation or the identification documents and proof of address used to open the account.

As a result of this I feel I am now left with no option but to pursue Vodafone through a smalls claim court (?) to get them to remove the default notice. I have sent a Pre Action Protocol stating my intent. In my Basis of Claim 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. I can and have provided evidence to back up these claims.

So in summary, it’s a horrible situation that has caused me untold stress for nearly 2 years. Vodafone have yet to respond to my Pre Action Protocol letter and have until next week to do so (within the 28 days). I am preparing my next steps either way but wish I had posted on here sooner as I need advice on the following:

Can a small claim court force a company to remove a default notice?
Should I be pursuing Vodafone for damages?
Is there any way to get the Ombudsman to re-investigate now that I have all the evidence I need?

Any help appreciated guys!
Thanks, Abbie!

[R0b]

Re: Taking Court Action Against Vodafone - Remove Default Notice

It would cost you £255 and you would need to submit an application to the Court but I certainly would not throw any further money into the ring until you've fully considered their defence and whether you have a reasonable prospect of success.

You need to analyse Vodafone's defence and consider whether anything they have said is true, particularly where they are claiming that you were aware that a mobile account would be set up. If this is true and you knew then I think your claim is going to fall flat on the argument of the account being set up fraudulently. Irrespective of what handset/sim only deal was taken out or any incentive, you would have had the knowledge.

At this stage you may wish to consider withdrawing the claim and settling up if the above is true. We have limited information about your situation so I would suggest you take a step back and look at everything before deciding what you want to do.

[AbbieA]

Re: Taking Court Action Against Vodafone - Remove Default Notice

Hi Rob, thanks for the quick reply. Do you know how exactly I can go about amending my claim? I can't see an option to do that on MCOL?

[R0b]

Re: Taking Court Action Against Vodafone - Remove Default Notice

My initial view (as the defence points out) is that you've issued a claim for stress and inconvenience and time spent. Damages for stress and inconvenience alone, is not a remedy and as Vodafone also say, neither is time spent. Your particulars of claim make no reference to any breach of DPA or negligence and because you didn't plead those in the claim form, it is highly likely that you won't be able to argue that in court unless you amend your claim.

That aside, there is clearly some conflicting information between what you say and what Vodafone says. You say there was no cash incentive, but how did they get your bank details in the first place?

The case is obviously going to rest on what exactly happened that day and what was said. There's a difference between giving your information for charitable purposes and handing over your details for someone specifically setting up a mobile phone account. So what I can gather from Vodafone's defence, they are saying you were fully aware that you would be providing your details to set up a mobile phone account in return for some kind of cash incentive - you are going to need to explain why this wasn't the case.

Essentially, if you had knowledge that a mobile phone account would be set up in your name (for whatever reason) then it can't be a fraudulent account because you knew about it. IF, however, your details were given for some other reason than a mobile account being set up, then that would count as a fraudulent account.

[AbbieA]

Re: Taking Court Action Against Vodafone - Remove Default Notice

I have also received the Defence now, along with a counter claim for the monies Vodafone believe I owe:

The Defence

8. It is denied that the Claimant has any basis for a claim against the Defendant.

9. This account, as detailed above is known to the Defendant as part of a number of accounts that are known to be in connection with a bigger fraud ring against the Defendant. From the information the Defendant has, this fraud ring has been investigated by the Police and prosecutions have taken place and individuals sentenced.

10. It is denied in full that the Claimant did not knowingly and voluntarily enter into this contract. From the information available to the Defendant, the process of this organised fraud was initiated by the fraudsters whom themselves contacted individuals, mainly students and provided information on how they could make money. This fraudulent process worked by individuals taking out mobile phone contracts with a device such as a mobile phone and when the device arrived, the individual was informed to cancel the contract and direct debit. The individual was provided with a cash incentive and informed that any money was taken from their bank account would be reimbursed by another company connected to them. The device would then be kept instead of being returned.

11. If a device was not provided with the initial contract and a SIM only contract entered into, the SIM would be placed into a gateway which allowed hundreds of SMS text messages to be sent.

12. The individuals were given a comprehensive form to complete which included details needed to set up a mobile phone contract. A copy of this form is attached at Appendix 3 and contains the information which would have been provided to the individuals such as the Claimant.

13. Notwithstanding the above, the Defendant maintains that the contract taken out on ****** 2014 was entered into by the Claimant through this third party company. The Defendant maintains that the Claimant was aware that she was entering into a contract with the Defendant and whether she believed it to be legal or illegal at the time, she agreed to the terms and is therefore liable for all charges for the entire contract period. To the Defendant's knowledge, this information was provided willingly by the individuals involved and including the Claimant, therefore there was intention on behalf of the claimant to enter into this contract.

14. This particular contract was a SIM only deal therefore the Defendant believed that the SIM card provided was inserted into a gateway which allowed hundreds of 945 text messages to be sent per month. Please see the **** 2014 invoice which shows an example of this attached at Appendix 4. The mobile numbers have been concealed. This pattern of SMS text messages sent is not common for individual consumer use.

15. Upon receiving the claim form and review of this account, the Defendant has conducted some investigations. They contacted the Claimant's bank by telephone as this is shared information and requested details of certain payments made to the Claimant. The bank are permitted to provide a yes or no response only. The Defendant asked if the Claimant had received payments into her account which matched the same value payments made to Vodafone and were made in or around the same time as the direct debit payment was due. The bank confirmed 'yes' in reply. The Claimant had been reimbursed for the first three monthly direct debits made.

16. The Defendant note that the Claimant has further received a refund of £*** from her bank.

17. The Defendant maintain this Claimant is a willing party to this contract and is therefore bound by the terms and conditions. The Defendant admits registering late payments from **** 2015 to **** 2016 and a default payment on the Claimant's credit file in **** 2016 in accordance with clause 14.a.of the terms and conditions. This provision states that the Defendant will release, to credit-reference agencies and fraud-prevention agencies, details of the Claimant's agreement with them including any change of address, payments the Claimant makes, account balances, missed payments, disputes and queries. Furthermore, if the Claimant does not pay in full and on time, the Defendant may inform credit-reference agencies who will record the debt.

18. Should the Claimant make a payment of the amount outstanding the credit file will be updated. The Defendant is obliged to keep accurate and up to date records. Moreover, they are required to do so by the Information Commissioner in order to utilise the credit reference agency databases. The Defendant asserts that the adverse information was recorded correctly and will remain on the Claimant's credit file for a Period of 6 years. The adverse entries will be marked as satisfied once the outstanding balance hat been paid. The Defendant is obliged to record the Claimant's payment history accurately.

19 The Defendant denies that it is liable to compensate the Claimant In respect of stress or inconvenience or any alleged stress Or inconvenience. The Defendant has conducted itself and acted wholly in accordance with the contract between the parties. Moreover, the Defendant is not liable for any loss that is not directly caused by it pursuant to clause 12 (a) of the contract. Nevertheless, damages for time spent is not an actionable remedy known to law.

20. The Defendant denies any liability to the Claimant whether as pleaded or at all.

21. Save as aforesaid, each item of the claim is denied.


I have highlighted the sections that I disagree with:

The individual was provided with a cash incentive and informed that any money was taken from their bank account would be reimbursed by another company connected to them. The device would then be kept instead of being returned - This was not the case.

To the Defendant's knowledge, this information was provided willingly by the individuals involved and including the Claimant, therefore there was intention on behalf of the claimant to enter into this contract - The information was not provided willingly for the sake of entering into a mobile phone contract.

This particular contract was a SIM only deal - This was not what Vodafone have previously led me to believe. All previous communications have stated that this was for an Iphone, including all the previous fraud investigations carried out by Vodafone.

The bank confirmed 'yes' in reply. The Claimant had been reimbursed for the first three monthly direct debits made - I am wholly unaware of this. I will be checking with my Bank today to see if this is correct. That may explain why this wasn't picked up straight away but also makes me feel sick to my stomach!

I'm really upset about this again, just as I thought I was making progress it has all come crashing down again :-(

[AbbieA]

Re: Taking Court Action Against Vodafone - Remove Default Notice

Hi Rob,

Thanks for getting back to me. My Particulars are:

Vodafone Limited have incorrectly applied a Default to my Credit Score in relation to a fraudulent account. This was reported to them in July 2015, along with the Police (who provided a Crime Reference Number) and my bank who recovered all monies paid to Vodafone. I have since sent Vodafone a Letter Before Action asking them to have the Default removed from my Credit Score and pay £4170 byway of compensation, calculated at a rate of£5.00 per day up to and including the date of the letter, which I consider to be a reasonable sum that reflects the effects of the damage to my credit score and the length of time and resource I have spent in relation I will provide the defendant with separate detailed particulars within 14 days after service of the claim form. The claimant claims interest under section 69 of the County Courts Act 1984 at the rate of 8% a year from 13/10/2017 to 06/11/2017 on£4,170.00 and also interest at the same rate up to the date of judgement or earlier payment at a daily rate of £0.91.

As for the detailed particulars, I sent what was in the claim form only. I do not remember ticking a box on the MCOL site that says I'll provide further details of the claim and have checked on the form and can't see it. Hope I haven't screwed this up :-(

[R0b]

Re: Taking Court Action Against Vodafone - Remove Default Notice

I don't think posting the particulars on here is going to affect you in any way, though I must admit they aren't the greatest particulars of claim. Another point is that your PoC says you will provide detailed particulars within 14 days from service of the Claim Form, did you tick the box on the MCOL site that says you'll provide further details of the claim? Or did you just put what was contained in the Claim Form?

Assuming you've checked MCOL to see they've filed a defence, how long ago was that? Maybe you should contact them and ask for a copy if its been at least a week.

[AbbieA]

Re: Taking Court Action Against Vodafone - Remove Default Notice

Hi Guys,

Sorry for the late reply, I have been away on holiday. Vodafone have now submitted a defence, though I am yet to see it. I will send the Particulars of Claim to Rob now via pm. I will then share on here if he is happy it will no effect on the case (sorry guys, I'm new to this and don't want to put my foot in it!)

Thanks for all your help!

[slainte caragh]

Re: Taking Court Action Against Vodafone - Remove Default Notice

I'm not sure how you can "assert that Vodafone have been negligent in allowing a contract to be opened with insufficient documentation" when the account was opened in a Carphone Warehouse store where presumably the documents were presented.

As I understand it all new mobile phone contract applications are credit checked at the point of sale in the Carphone Warehouse store through a system which links to Vodafone's system. It would usually check the Electoral Roll on the CRA file against the information given to the Carphone Warehouse.

I have no idea what documents they ask for but proof of address might be one, such as a photo driving licence or bank statement etc.

The way a contract is taken out in store is as follows
A full credit check, checking the electoral roll, proof of documentation which is normally a debit/credit card registered to the address, a form of photo ID (easy enough forged apparently), a utility bill (NOT a mobile phone bill) registered to the address within the last 3 months or a bank statement to the address within the last 3 months - easy if the account is paperless!

Were you on the Electoral Roll at your parents' address (where the Default was registered) or at your term-time uni address at the time you completed that questionnaire?

If the account was opened in a different name to you and at a different address (not your parents or term-time uni address given to the 'market researcher') then why didn't that flag up on the Vodafone/Carphone Warehouse credit check unless Carphone Warehouse didn't carry out proper checks?
In this case they take a previous address too. It is simple enough to say Oh I've only been there x amount of months/weeks my last address is xxxxx

https://selfhelp.carphonewarehouse.c...00000000000%7D

Consider whether the reason Vodafone hasn't given you information of the account opening may be because they weren't directly party to it if it was done in a Carphone Warehouse store in person with one of their advisers
If this is the case then no, VF won't have the documentation as CPW are an intermedary (kinda like a franchise) and keep the information for themselves to upgrade etc.

From what you say Vodafone has refunded you (via your bank) all the charges they collected by Direct Debit which I presume would have been for line rental, air time, texts etc. but was there also a handset which would have had a trackable IMEI number
If this is the case, the IMEI will be blocked as standard and information as to the location and time of last call is normally forwarded to the company's fraud team. What happens there is something I was never told (didn't need to know) but I know that they take fraud seriously. It might be slightly different as I worked for "the enemy", but I am led to believe Fraud Prevention is a blanket format!

Perhaps when that letter from the Legal Team said the account "will be left cancelled and collectable" it meant that once/if the perpetrators of the fraud are convicted then Vodafone will be in a position to "collect" the money they've lost from them (i.e. the fraudsters under the Proceeds of Crime Act etc).

From what I've read on the internet (so not reliable ) there was a massive fraud which may have resulted in Vodafone loosing a lot of money which they intend to recover.

You need to aim at the right target before you accuse them of being negligent in court.

The Default marker may be a different issue.

Di

My answers are in Purple.

I don't know a lot about court cases but I know how CPW and the phone contract side works if that helps.

With an intermediary the contract side is kept with them, the network is supplied by VF/O2 etc. Customer services etc is normally directed back to CPW. The bills are payable to VF, CPW are paid a kinda commision (I don't really understand how this part works) and are allowed to sell at a discounted rate etc.

hope this helps

Callie

[MIKE770]

Re: Taking Court Action Against Vodafone - Remove Default Notice

how can one help when details are not forth coming? put particulars on here minus personal detail and account numbers, people are not paid to look on these sites all day you are only one of many thousands of cases, but as a security matter we state no personal details just in case!

[R0b]

Re: Taking Court Action Against Vodafone - Remove Default Notice

I'm not sure it would jeopardise the case since it is a matter of public record at the court, but if you feel more comfortable sending by private message that's fine. The reason I ask is that obviously none of us have seen your particulars and I'm just conscious that if you've not properly pleaded your claim, Vodafone may get off on a technicality or on the basis that it wasn't pleaded.

I think at this stage the intention to defend in full is standard so as not to prejudice any rights or defence they have against you. But it will be interesting to see what their defence is.

Perhaps one of the admins is able to put this thread more privately so we are able to have a more frank discussion on it, maybe in VIP? but I'm not sure Lee from Vodafone will still be able to access it? @Amethyst?

[AbbieA]

Re: Taking Court Action Against Vodafone - Remove Default Notice

Just out of curiosity, would you be willing to share the particulars of claim you submitted?

Hi Rob, yes I'm happy to share but not sure if it wise at this stage to share publicly? I don't want to jeopardise the case in any way.

Vodafone have acknowledged the claim and stated that they intend to defend in full. They have also instructed a law firm to act on their behalf. They now have until 11/12/17 to respond.

[R0b]

Re: Taking Court Action Against Vodafone - Remove Default Notice

Hi Guys,

Quick update; Vodafone failed to respond to the LBA within the allotted time, despite being given an extension, though they did mention that they were having a meeting about it the following week and may or may not be able to respond after that. As a result, the claim was issued on the 7th of November and deemed as served on the 12th. They have until the 26th of November to reply.

I have also just seen that the trial in relation to Operation Rosewood has been concluded today; http://www.dailymail.co.uk/news/arti...-2m-fraud.html , hopefully this should speed up the whole process now.

I'd also like to thank Lee from Vodafone who had been checking for updates on the account almost weekly but has now been asked to stand down in light of the court papers being issued. I appreciate him trying to help.

Just out of curiosity, would you be willing to share the particulars of claim you submitted?

[EXC]

Re: Taking Court Action Against Vodafone - Remove Default Notice

Interesting!

[AbbieA]

Re: Taking Court Action Against Vodafone - Remove Default Notice

Hi Guys,

Quick update; Vodafone failed to respond to the LBA within the allotted time, despite being given an extension, though they did mention that they were having a meeting about it the following week and may or may not be able to respond after that. As a result, the claim was issued on the 7th of November and deemed as served on the 12th. They have until the 26th of November to reply.

I have also just seen that the trial in relation to Operation Rosewood has been concluded today; http://www.dailymail.co.uk/news/arti...-2m-fraud.html , hopefully this should speed up the whole process now.

I'd also like to thank Lee from Vodafone who had been checking for updates on the account almost weekly but has now been asked to stand down in light of the court papers being issued. I appreciate him trying to help.