Wrongful default placed on credit file by Barclaycard

[mrsangry]

Having received some suspicious scammy sounding letters from debt collection companies starting in August 2012, the first of whom I asked to prove the debt (but they couldn't and obviously passed it on to others who were ignored as the alleged debt had already been disputed), I have just checked my credit file. To my surprise I found a default entered last July for an unknown alleged debt to Barclaycard. I have had no communication from Barclaycard despite living at this address for nearly 8 years and had no notification of any alleged debt prior to this default being placed.

I have sent a Notice of Correction to Noddle and am about to send a CCA request to Barclaycard for all details of this alleged account. Since I suspect it may be connected to an Egg account which I held and was closed before I moved to this address in 2005, and on which no payments have been made for at least 8 years, I have also prepared a SAR to send to Egg seeking all information held by them.

What is puzzling me is the default date and the fact that the non-existent (as far as I am concerned) account was marked as paid up from 2007 until 2011, when it was recorded as going into arrears. There are some phantom alleged payments (that I didn't make) showing in 2010 but none at all before that, although the account start date is recorded as 2002. I no longer have the paperwork relating to this account as it is well over 6 years since I closed the account and nothing adverse was recorded until last year.

The fact that I have received no correspondence from the original 'creditor' is very concerning as my understanding is that they are obliged to provide statements and serve notices to any alleged debtor. Even if there had been an outstanding balance which I knew nothing about, it would have been statute barred by now and completely 'extinguished' as I live in Scotland.

Obviously I need to get this default removed asap as it is inaccurate and my data have clearly been processed unlawfully. Although I have no need of credit at the moment, that may change and my credit report has effectively been trashed by a wrongful entry. I was glad to find info here that suggests I am not alone in dealing with this problem, but I sense it is going to be a frustrating process to resolve the matter.

I'd appreciate confirmation that I am doing the right thing sending a SAR to Egg (with £10 fee) and a CCA request to Barclaycard (with £1) fee in order to kill two birds with one stone!

Thanks in anticipation.

[Rico]

Re: Wrongful default placed on credit file by Barclaycard

Hi,

I don't think Barclaycard deal with the public face to face.

In that case. I'd wait for 1st April (next year if you're in Nottingham or Edinburgh) and hit them with a small claim along these lines:

"refer to the default as a negligent misrepresentation and claim general damages for damage to creditworthiness, to be assessed by the court in a similar manner to Durkin v DSG & HFC"

As a minimum, I'd expect them to remove the default and offer you a few beer chits. If you see the process through, you "should", within a couple of months (depending on the judge), get £8Kish.

Cheers,

Rico.

[mrsangry]

Re: Wrongful default placed on credit file by Barclaycard

I have sent all the correspondence (and POs for statutory fees) by recorded delivery - SAR to Egg, letter demanding 'proof' of debt/default to Barclaycard and Notice of Correction to Noddle. I have indicated I will make a formal complaint to the ICO in the event that they do not comply within the statutory timescales.

I'm meanwhile going to look up the relevant case law, much of which is cited here, and will read the Durkin judgement thoroughly. I can easily sue in Edinburgh (nice day out) and will certainly be demanding compensation for the detriment I have suffered as a result of Barclaycard's incompetence.

Can you give me a clue about why I should wait until next April (you mean 2014?) I assume it's because some new legislation will kick in then. For a possible £8k I'm willing to hang about as I don't actually need any credit at the moment but have still suffered detriment due to negligent misrepresentation.

Has Celestine obtained a judgement in the case she was pursuing? I haven't seen the reported outcome since I've been nosing around here.

I may be new to this, but I'm not new to legal disputes and advocacy, so will relish the learning curve.

Many thanks for your help and encouragement as I sort this out. I will keep you posted.

[Rico]

Re: Wrongful default placed on credit file by Barclaycard

Ah. You're in Scotland. I'm unsure if the small claim will rise to £10k here on 1st April 2013. Perhaps someone else knows?

I've experienced dodgy judges in the Court of Session in Edinburgh but I suppose it's possible that they'll not be in the lower courts there.

At least the lower courts in Scotland will be bound by the ruling in the Court of Session, so you'll have a distinct advantage there. The only problem might be keeping the claim in the small claims court if the limit doesn't rise to £10K.

Stick to this, from the Durkin Appeal in the Court of Session, rather than the whole Durkin judgement:

[77] Turning to the question of causation, there is little more we need add. It was a matter of concession on the part of the second respondents that in the event that the second respondents were liable to pay damages to the appellant an award of general damages for loss of credit was recoverable and that a figure of £8000 was reasonable.

Game over.

I understand Celestine came up against a dodgy judge down in England but she was claiming something a little different.

All the other things you've mentioned here are tedious. Letters (even e-mails), phone calls, ICO, Trading Standards, Notice of correction are all, in my experience, a waste if it doesn't lead to a face to face meeting with the perpetrators.

They'll try and settle with a claim on their desk but they'll pretty much string you along otherwise.

Good luck in finding the human that has discretionary power to remove your default at Barclaycard and good luck in the small claims court.

Cheers,

Rico.

[gravytrain]

Re: Wrongful default placed on credit file by Barclaycard

Has the creditor conceded that he is negligent, that may be the problem.

Personally i would not consider any claim for damages in one of these cases as "game over", many have, and come seriously unstuck.

I would take things one step a a time, and see and how they respond to your complaint, all cases are different.

[Rico]

Re: Wrongful default placed on credit file by Barclaycard

Creditor doesn't need to concede anything. The facts are there.

Scottish courts bound by this Court of Session ruling that general damages for loss of credit was recoverable and that a figure of £8000 was reasonable.

Back of the net!

Good advice from GT though if you can be bothered playing the slow game.

Cheers,

Rico.

[gravytrain]

Re: Wrongful default placed on credit file by Barclaycard

I know this has been argued for a long time and here is a certain amount of fingers in ears and humming La la la, but there have been several cases that clearly demonstrate the common law principles involved here as well as he statutory requirements.

To prove negligence there must be an action which an ordinary person would consider to breach the common law duty of care.
No one can be accused of breaching a duty of care if they are acting in good faith on he information they have.

Just entering a default in error is not enough, if the default is entered after the data controller has been advised, or not removed when they were aware it was in error that is another mater

This is the case unfortunately, and this is also echoed in the statute.

[Rico]

Re: Wrongful default placed on credit file by Barclaycard

a default in error is not enough

Durkin v DSG & HFC, ratified by the Court of Session and based on Kpohraror v Woolwich etc... says it is enough.

Further, there's no such thing as a default "in error". It is a very serious thing, to place a default on someones credit file. It results in the absolute annihilation of their credit rating, marking them as one of society's undesirables. Defamation in fact.

There can be absolutely no sympathy for banks that have a system that allows this to happen.

To this day, the banks continue relentlessly in this vein. It has to stop. Justice must prevail.

Cheers,

Rico

[mrsangry]

Re: Wrongful default placed on credit file by Barclaycard

I know this has been argued for a long time and here is a certain amount of fingers in ears and humming La la la, but there have been several cases that clearly demonstrate the common law principles involved here as well as he statutory requirements.

To prove negligence there must be an action which an ordinary person would consider to breach the common law duty of care.
No one can be accused of breaching a duty of care if they are acting in good faith on he information they have.

Just entering a default in error is not enough, if the default is entered after the data controller has been advised, or not removed when they were aware it was in error that is another mater

This is the case unfortunately, and this is also echoed in the statute.

As an ordinary person I am pretty sure the duty of care would extend to actually notifying the alleged debtor of an issue. I have received no prior communication about this default, no statements, nothing at all!

When I moved here in 2005, I paid a hefty amount to Royal Mail to have my post forwarded for 18 months from my former address just so that nothing was missed and all other bank accounts/card details were updated without any issue. I had also had post forwarded by Royal Mail from the last-but-one address I had lived a for the previous 9 years so there is really is no excuse.

I still receive occasional statements for a Mastercard account I have held for at least 20 years, which has a 75p credit balance and I haven't used for several years, as they are obliged by law to report this information to me and rightly do so. Even the HMRC only expects me to keep records for six years, so I no longer have the paperwork for the closed Egg account (more fool me, but there is a limit to how much space I have in the filing cabinet and I do have to have occasional purges!)

If Barclaycard is claiming a debt exists, I surely have a statutory and common law right to have received notification and proof prior to their taking what I consider (as an ordinary person!) disproportionately damaging action by placing a default on my credit file. I should certainly have been notified of its existence via statements and other prior notices (just as my Mastercard account, which is unused, still reports to me every so often).

The more I think about it, the higher my blood pressure rises as I have never defaulted on any personal or business loan in my life and I have business and personal bank accounts, a modest mortgage at an exceptionally low interest rate and no other loans. The amount in question is paltry (to me) at less than £1300, but since I do not owe it (and the first debt collector I sent packing was unable to provide any evidence of a debt from the original creditor to whom he referred the dispute) I will not be paying it!

My reputation has been badly damaged without my knowledge by a third party who has processed my personal data unlawfully and I will suffer financial detriment if I decide to apply for credit in the future. I think that's enough to pursue these charlatans via the regulatory authorities and through the courts for adequate remedy which will require more than simply removing a wrongful default.

Soapbox dismounted (for now)

[gravytrain]

Re: Wrongful default placed on credit file by Barclaycard

As an ordinary person I am pretty sure the duty of care would extend to actually notifying the alleged debtor of an issue. I have received no prior communication about this default, no statements, nothing at all!

When I moved here in 2005, I paid a hefty amount to Royal Mail to have my post forwarded for 18 months from my former address just so that nothing was missed and all other bank accounts/card details were updated without any issue. I had also had post forwarded by Royal Mail from the last-but-one address I had lived a for the previous 9 years so there is really is no excuse.

I still receive occasional statements for a Mastercard account I have held for at least 20 years, which has a 75p credit balance and I haven't used for several years, as they are obliged by law to report this information to me and rightly do so. Even the HMRC only expects me to keep records for six years, so I no longer have the paperwork for the closed Egg account (more fool me, but there is a limit to how much space I have in the filing cabinet and I do have to have occasional purges!)

If Barclaycard is claiming a debt exists, I surely have a statutory and common law right to have received notification and proof prior to their taking what I consider (as an ordinary person!) disproportionately damaging action by placing a default on my credit file. I should certainly have been notified of its existence via statements and other prior notices (just as my Mastercard account, which is unused, still reports to me every so often).

The more I think about it, the higher my blood pressure rises as I have never defaulted on any personal or business loan in my life and I have business and personal bank accounts, a modest mortgage at an exceptionally low interest rate and no other loans. The amount in question is paltry (to me) at less than £1300, but since I do not owe it (and the first debt collector I sent packing was unable to provide any evidence of a debt from the original creditor to whom he referred the dispute) I will not be paying it!

My reputation has been badly damaged without my knowledge by a third party who has processed my personal data unlawfully and I will suffer financial detriment if I decide to apply for credit in the future. I think that's enough to pursue these charlatans via the regulatory authorities and through the courts for adequate remedy which will require more than simply removing a wrongful default.

Soapbox dismounted (for now)

Yes you could argue this, certainly there are statutory notices required under the CCA and advisory requirements under ICO guidlines.

The point is that you have to demonstrate negligence, just saying the default was placed on my file in error is not enough, if he creditor can argue he took reasonable care.

If this is just lack of care you will have to substantiate damages, despite what is said by some, and you say that none were incurred.(Halliday Vs creative consumer finance Ld.[2012] EWCA civ 254)

The case of a wrongly entered notice is easily distinguished from, say of a check being bounced(kpohraror), in that it is only apparent if someone searches your file, there is no damage otherwise because no one is aware of it.

As yet you do not know the strength of their argument ? Personally I would hang fire any litigation until you were.

[gravytrain]

Re: Wrongful default placed on credit file by Barclaycard

I may be as well to have a look at this also where the Court of Appeal, Civil Division, in allowing the defendant credit reference agency's appeal, held that the defendant had not breached its obligations under the nor had it owed the claimant a concurrent duty in tort in circumstances where the defendant had included an incorrect entry in the claimant's credit file
http://www.bailii.org/ew/cases/EWCA/Civ/2013/108.html

[mrsangry]

Re: Wrongful default placed on credit file by Barclaycard

As long as the CRAs amend the information when its inaccuracy is notified to them, I will pursue Baclaycard and/or Egg in the first instance as the truly guilty data processors.

As I am in Scotland, any old alleged debt, even one which continued to exist without my knowledge, would have become statute barred after five years under the 1973 Act if no acknowledgement or payment was made during the relevant period, i.e. the obligation to repay would be 'extinguished' and the debt would no longer exist to be pursued/defaulted.

Since I have made no payments to anyone other than my current legitimate lenders in at least 8 years, I cannot fathom why a default should have been recorded in 2012 on a debt that cannot possibly exist. I'll see what BC comes back with, but from what I have read they are slow at responding to requests for information and may need a bit of arm twisting to comply.

[Rico]

Evil bankers with blood on their hands

The case of a wrongly entered notice is easily distinguished from, say of a check being bounced(kpohraror), in that it is only apparent if someone searches your file, there is no damage otherwise because no one is aware of it.

For the benefit of others.

GT is comparing general damages (wrongly entered notice) to specific damages (bounced check).

If one were to compare it, instead, against the reason for the bounced check, one would see similarity.

The chances, in modern society, of your credit file not being searched is negligible and in any case the damage remains as the OP here is experiencing.

Let me be very clear. These bankers, the advocates that represent them and the judges that let them off the hook are all evil.

A creditor arguing that they took reasonable care in entering a wrongful default is wasting time. It is so obvious (as was pointed out in Durkin v DSG & HFC) that they take no care whatsoever.

Weaker members of society can be tempted to take their own lives with such slurs as these. (Consider the extortion and blackmail). The bankers and the judges that protect them should be severely punished for what they have been getting away with now for at least 16 years.

There's no excuse. If one shoots someone dead 'in error", one has still shot someone dead. The evil ones are the folk that will try and "argue" that they've done nothing wrong. Wasting peoples time while killing others. Spineless.

Let's hope the Supreme Court can help get Britain back on track and let's start making an example of these undesirable members of our society that are the bankers and all those that "protect" them.

Just saying.

Rico.

[gravytrain]

Re: Evil bankers with blood on their hands

For the benefit of others.

GT is comparing general damages (wrongly entered notice) to specific damages (bounced check).

If one were to compare it, instead, against the reason for the bounced check, one would see similarity.

The chances, in modern society, of your credit file not being searched is negligible and in any case the damage remains as the OP here is experiencing.

Let me be very clear. These bankers, the advocates that represent them and the judges that let them off the hook are all evil.

A creditor arguing that they took reasonable care in entering a wrongful default is wasting time. It is so obvious (as was pointed out in Durkin v DSG & HFC) that they take no care whatsoever.

Weaker members of society can be tempted to take their own lives with such slurs as these. (Consider the extortion and blackmail). The bankers and the judges that protect them should be severely punished for what they have been getting away with now for at least 16 years.

There's no excuse. If one shoots someone dead 'in error", one has still shot someone dead. The evil ones are the folk that will try and "argue" that they've done nothing wrong. Wasting peoples time while killing others. Spineless.

Let's hope the Supreme Court can help get Britain back on track and let's start making an example of these undesirable members of our society that are the bankers and all those that "protect" them.

Just saying.

Rico.

Firs of all Rico, i am in total agreement, all bankers are barstards.

Frankly and purely pragmatically, i see no point in arguing compensation for general unspecified loss in the way you put forward, however much, I WOULD LIKE TO.

Smeaton made it clear that a tort in common law cannot co exist with a statutory principle. The breach and remedies for wrongful processing of data are given in the DPA act.(which specifies damages) I don't, in the light of this see how you can claim general damages in tort.

I would like to be wrong, so if someone can point out my error in law, or my reading of the judgment, I would be grateful.

[gravytrain]

Re: Wrongful default placed on credit file by Barclaycard

As long as the CRAs amend the information when its inaccuracy is notified to them, I will pursue Baclaycard and/or Egg in the first instance as the truly guilty data processors.

As I am in Scotland, any old alleged debt, even one which continued to exist without my knowledge, would have become statute barred after five years under the 1973 Act if no acknowledgement or payment was made during the relevant period, i.e. the obligation to repay would be 'extinguished' and the debt would no longer exist to be pursued/defaulted.

Since I have made no payments to anyone other than my current legitimate lenders in at least 8 years, I cannot fathom why a default should have been recorded in 2012 on a debt that cannot possibly exist. I'll see what BC comes back with, but from what I have read they are slow at responding to requests for information and may need a bit of arm twisting to comply.

Yes, if this was a credit card you should have been receiving annual stablemates as per section 78(4) of the Consumer Credit Act also you should have had section 86 notices of arrears and then the default notice under section 87 of the same act, all this take as read that the account has been terminated on default.

The issue of the statute barr will also of course be dependent on if the account has been terminated, as this is the cause of action.

Before registering the default on your file you should have received a warning notice giving you 28 days grace, I believe that this is guidance only and cannot be used as cause for action in saying that the default should not have been registered, (could be wrong in this)