car2403 -v- Barclays Bank (Default removal)

[car2403]

Default on credit file from BB - looks like an overdraft, but I also have a Career Development Loan that I want to querying with them anyway

2 x CCA request for each account sent off today

[Azazal23]

best of british luck, if its for a current type account chances are they say they dont issue default notices, only termination ones.

am awaiting my hearing now

[car2403]

I'll be arguing s.10 CCA 1974 in that case;

I also refer to s.10 of the CCA, as I believe the Default showing may relate to an Overdraft on this Current Account;
10 Running-account credit and fixed-sum credit;
(1) For the purposes of this Act—
(a) running-account credit is a facility under a personal [consumer] credit agreement whereby the debtor is enabled to receive from time to time (whether in his own person, or by another person) from the creditor or a third party cash, goods and services (or any of them) to an amount or value such that, taking into account payments made by or to the credit of the debtor, the credit limit (if any) is not at any time exceeded; and
(b) fixed-sum credit is any other facility under a personal [consumer] credit agreement whereby the debtor is enabled to receive credit (whether in one amount or by instalments).
(2) In relation to running-account credit, “credit limit” means, as respects any period, the maximum debit balance which, under the credit agreement, is allowed to stand on the account during that period, disregarding any term of the agreement allowing that maximum to be exceeded merely temporarily.
(3) For the purposes of section 8(2) [paragraph (a) of section 16B(1)], running-account credit shall be taken not to exceed the amount specified in that subsection [paragraph] (“the specified amount”) if—
(a) the credit limit does not exceed the specified amount; or
(b) whether or not there is a credit limit, and if there is, notwithstanding that it exceeds the specified amount,—
(i) the debtor is not enabled to draw at any one time an amount which, so far as (having regard to section 9(4)) it represents credit, exceeds the specified amount, or
(ii) the agreement provides that, if the debit balance rises above a given amount (not exceeding the specified amount), the rate of the total charge for credit increases or any other condition favouring the creditor or his associate comes into operation, or
(iii) at the time the agreement is made it is probable, having regard to the terms of the agreement and any other relevant considerations, that the debit balance will not at any time rise above the specified amount.
So by virtue of the fact that overdrafts are indeed regulated, you would have needed to serve a default notice. Some agreements have a clause within s.98 which allow a termination without a default (if someone went bankrupt for example); with these you would have needed to serve notice and give 7 days prior to termination - this section does not apply in this case.

[Azazal23]

yes is the argument i am and will be using. I have my date for October anyway so will let you know how it goes

[car2403]

I had an "interesting" time in Court yesterday over my claim against BB for charges;

http://www.consumeractiongroup.co.uk...lays-bank.html

I'm still going after them for the Default now - wish I'd done it in the case, above, though for anyone wanting to start with charges/default removal combined. (Especially as I clearly had the Judge on my side!)

I'll continue with this regardless though - they have until the end of next week to respond to the CCA request...

[car2403]

Nothing from the CCA, 12+ days in now - I've paid this month's payment, next one is due 25th September which is the 12 days + 30 day period so I'm still waiting to see what happens with this one...

[car2403]

Reply from B - credit agreement for the loan, which isn't signed/dated, but nothing for the overdraft...

"Because of the type of account this relates to, we don't have a copy of an agreement we can provide you, but enclosed is your termination notice and default notice"

They must think I'm daft, how can they send a default notice under s.87(1) of the CCA when they don't have a CCA regulated agreement? They have conveniently ignored the information I have given them in relation to s.10 CCA above, also.

I'll be waiting for the full default period to pass by (September 26th) then writing back to them.

Bear in mind that I've already WON my case against them for charges applied to the overdraft, which is £900-odd from a £1100-odd balance - and now they admit that they don't have an agreement! So, how, exactly, did I agree that you could charge me in the first place?

Tsk, tsk, Barclays!

[car2403]

I've had some time to think/draft a response, so here it is - any comments?; (Sorry, but it's 8 pages long @ size 12 font!)

Dear Sir/Madam,

Re: "Default” showing on Credit File

With enclosure:

Formal notice to desist from processing or disclosing personal subject data, without consent or permission, under the
Data Protection Act 1998

I refer to my letter dated 13 August 2007, which was delivered to you, via Royal Mail Recorded Delivery, on 14 August 2007, and your response to this letter dated 6 September. As you are aware, I have recently conducted an audit of my personal credit reports supplied by Experian, Equifax and CallCredit. It is noted that there exists, within all three files, a Default entry referenced as “Barclays Bank PLC” indicating a Bank account with a Default balance of £X. I also have raised a query over my Loan, X.

In my letter, I made a request for a copy of the signed, executed credit agreements and true, certified copies of the original signed default notices for the above accounts under s.77(1) & s.78(1) of the Consumer Credit Act 1974, as amended. In addition, a statement of account should be sent along with any other document referenced in the credit agreement. You have failed to fully substantiate information relating to any of the questions put to you in the original letter. I now intend to outline this failure, taking each of these issues in turn;

Failure to provide a copy of the signed, executed credit agreements;

Firstly, looking at the Default registered, as outlined above – I note from your reply that;

“Due to the nature of this account there is no form of agreement that [you] can send to [me]”

You seem to have ignored my original request, in which I quoted s.10 of the Consumer Credit Act 1974, as amended. I will now requite this for your convenience;

“10 Running-account credit and fixed-sum credit;
(1) For the purposes of this Act—
(a) running-account credit is a facility under a personal [consumer] credit agreement whereby the debtor is enabled to receive from time to time (whether in his own person, or by another person) from the creditor or a third party cash, goods and services (or any of them) to an amount or value such that, taking into account payments made by or to the credit of the debtor, the credit limit (if any) is not at any time exceeded; and
(b) fixed-sum credit is any other facility under a personal [consumer] credit agreement whereby the debtor is enabled to receive credit (whether in one amount or by instalments).
(2) In relation to running-account credit, “credit limit” means, as respects any period, the maximum debit balance which, under the credit agreement, is allowed to stand on the account during that period, disregarding any term of the agreement allowing that maximum to be exceeded merely temporarily.
(3) For the purposes of section 8(2) [paragraph (a) of section 16B(1)], running-account credit shall be taken not to exceed the amount specified in that subsection [paragraph] (“the specified amount”) if—
(a) the credit limit does not exceed the specified amount; or
(b) whether or not there is a credit limit, and if there is, notwithstanding that it exceeds the specified amount,—
(i) the debtor is not enabled to draw at any one time an amount which, so far as (having regard to section 9(4)) it represents credit, exceeds the specified amount, or
(ii) the agreement provides that, if the debit balance rises above a given amount (not exceeding the specified amount), the rate of the total charge for credit increases or any other condition favouring the creditor or his associate comes into operation, or
(iii) at the time the agreement is made it is probable, having regard to the terms of the agreement and any other relevant considerations, that the debit balance will not at any time rise above the specified amount.”

In your response, by assumption, you are advising that this default is in relation to an overdraft with Barclays and you state that “there is no form of agreement” for this overdraft. As you can see by virtue of s.10, above, overdrafts are, indeed, regulated consumer agreements and therefore fall within the remit of the Consumer Credit Act 1974, as amended - as “running account credit”. Therefore - as you have no legally enforceable agreement - I contend that this debt is unenforceable under the Act, as a result. I also contend that the “Termination Notice” that you sent regarding this account has no legal effect, as there is no regulated enforceable agreement. Only an agreement regulated under the CCA can be “defaulted” and “terminated” within the terms of the Act – and, as no such agreement is in existence, this is clearly not the case here.

Finally, in relation to this account, I contend that the default registered is unlawful and illegal as it isn’t supported by either;

1. An agreement, regulated by the Consumer Credit Act 1974, (as amended) in which you can seek to enforce the agreement by “Defaulting” the account and registering such default against my credit file. Any reliance on the CCA to “Default” me in this way will therefore fail, as you do not have a properly executed regulated agreement under that Act. Or;
2. A prescribed “default” or “termination”, under the Consumer Credit Act 1974, (as amended) in which you can enforce this alleged agreement – as there is no regulated agreement, you can not rely on the Act’s terms to “default” or “terminate” the account.

I would also like you to note the outcome of car2403 –v– Barclays Bank PLC (Case number: X, heard by District Judge X in the X County Court on X), in which Barclays failed to provide a full Defence to my claim regarding default charges that have been applied to the account in question. In that Case, DJ X awarded judgment against Barclays in that these charges were applied unlawfully under the legal basis they were questioned. As such, this debt is – at least partially – made up of unlawful and illegal charges applied by Barclays.

I, therefore, dispute the entire balance of this agreement, on the basis described above and the fact that the balance – at least partially – is made up of unlawful bank charges.

I now turn to the Loan account X. Again I will first consider your reply in whether the agreement you have issued is in the prescribed form and content within the Act, then turn to the copy of the Default Notice you have sent.

Firstly, looking at the copy of the alleged agreement you have sent – I notice that it hasn’t been signed or dated by me, as a borrower under the terms of the Act. As I have requested a copy of the signed, executed credit agreements, (as stated in my original request) I can only assume from your reply that no such agreement is in existence. As such, I dispute the entire balance of this agreement and will progress my case as such.

As you will be aware, when you enter into a consumer credit agreement regulated by the 1974 Act, the agreement must be in the proper prescribed form (as set out in the Consumer Credit (Agreement) Regulations 1983, SI 1983/1553). This requirement is designed to protect the debtor, as the prescribed form contains important information and details of debtor protections and remedies under the 1974 Act. The agreement must also be properly signed by both parties. (ss.62-63 of the 1974 Act) If your agreement is not in the proper prescribed form or was improperly executed (signed) it may only be enforced by order of the court (s.65(1), 1974 Act); it may be that the agreement is not enforceable at all (subject to the discretion of the court)

I also refer to the Office of Fair Tradings’ guidelines on “Cancellable agreements”, which state;

“Signatures
…All agreements are to be signed by both customer and trader, or their representatives, and the date of signature entered. The customer’s signature and its date must be inside a box. This box can be of any size and appear anywhere in the agreement, but the wording inside it must be easily legible and must follow that for the appropriate type of agreement as set out in Appendix 2. The signature of the trader and its date must be outside the customer’s signature box. Similarly the signature of any witness, and its date, must also be outside the customer’s signature box…”

As such, I contest that this agreement is a regulated agreement under the Consumer Credit Act 1974, as amended, as you have failed to provide a signed, properly executed, copy of the alleged agreement.

I also contend that the “Default Notice” that you sent regarding this account has no legal effect, as there is no regulated agreement is under the CCA. Only a properly executed, regulated agreement can be “defaulted” and “terminated” within the terms of the Act. As no such agreement is in existence, no “Default” under the Act can exist.
Finally, in relation to this account, I now contend that the Default registered is unlawful and illegal as it isn’t supported by either;

§ An agreement, regulated by the Consumer Credit Act 1974 – (as amended) therefore, no Default can exist. Any reliance on the CCA to “Default” me in this way will therefore fail.
§ A prescribed “Default” or “Termination”, regulated by the Consumer Credit Act 1974 – (as amended) as there is no regulated agreement, you can not rely on the Act’s terms to “Default” or “Terminate” the account.

I now contend that both of these debts are “unenforceable”, and the alleged contracts are now “void” and in dispute. As such, I will not be sending further payment in relation to this account and I will consider any further attempt to collect the outstanding balance from you an act of harassment. I will also use these arguments as a complete Defence to any attempt to enforce these debts in Court, or via any other method.
I will now also contest that Barclays continued processing of my data is an unwarranted act and I enclose a Statutory Notice to that effect, which is deemed served as of the date noted on the Royal Mail's Recorded Delivery service audit.

My written permission allowing Barclays to continue processing, or disclosing, my personal subject data, does not exist. I also dispute Barclays “Defaulting” of my account, which is visible on my Credit Reference files, for the reasons outlined above. I, therefore, consider that any default appearing on my credit files in relation to these alleged agreements to be wholly unwarranted and unlawful.

As you are aware, I am afforded principled rights under the Data Protection Act (Data Protection Act), Schedule 1, Part 1 ("The Principles") in relation to the manner in which my data is collated, stored and processed. Of particular note, are Principles 3, 4 and 5:

“3. Personal data shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed.

4. Personal data shall be accurate and, where necessary, kept up to date.

5. Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes.”

In my case, Barclays is processing data without my consent. Consent in this case meaning the lawful right to process my data, with my permission, with the Credit Reference Agencies – that information being “publicly available”.

This is confirmed in Principle 2 of the Data Protection Act, which states:

"2. Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes."

I emphasise the term "specified and lawful purposes" as in ‘those specified within the contract’, and no more. I also emphasise the term "shall not be further processed".
After scrutiny of all the relevant legislation, including the Consumer Credit Act (As Amended), the various Financial Services Acts and the Data Protection Act, etc., it is clear that there is absolutely no legislation that allows a lender or supplier (e.g. Barclays) to collate, process or distribute any other information unless there is express written permission from the data subject.

In fact, Section 10 of the Data Protection Act awards the real authority, regarding privacy of data, to the data subject, not the Data Controller. The Act is also very clear as to the rights of the data subject in respect of withdrawing permission to continue data processing and disclosure:

“10. - (1) Subject to subsection (2), an individual is entitled at any time by notice in writing to a data controller to require the data controller at the end of such period as is reasonable in the circumstances to cease, or not to begin, processing, or processing for a specified purpose or in a specified manner, any personal data in respect of which he is the data subject, on the ground that, for specified reasons-
(a) the processing of those data or their processing for that purpose or in that manner is causing or is likely to cause substantial damage or substantial distress to him or to another, and
(b) that damage or distress is or would be unwarranted.”

However, there is some exclusion provisions for Data Controllers, and Section 10 does continue with various exceptions to subsection (1) above, and these are quoted, in full, below:

“10. - (2) Subsection (1) does not apply-
(a)in a case where any of the conditions in paragraphs 1 to 4 of Schedule 2 is met,
or;
(b)in such other cases as may be prescribed by the Secretary of State by order.”

To paragraph (b), I can only presume that Barclays has not applied to HM Secretary of State for an order allowing you an exclusion, which leaves Barclays with the only remaining possibility of requesting an exemption under paragraph (a).

So, we must turn to the exemptions permitted in paragraph (a) to find where Barclays Data Controller may invoke his perceived exemption to the Data Protection Act, namely, those listed in paragraphs 1 to 4 of Schedule 2. I have reproduced these exemption paragraphs, in full, below:

“1. The data subject has given his consent to the processing.
2. The processing is necessary-
(a) for the performance of a contract to which the data subject is a party, or
(b) for the taking of steps at the request of the data subject with a view to entering into a contract.
3. The processing is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by contract.
4. The processing is necessary in order to protect the vital interests of the data subject.”

It is my contention that Barclays supposed right of obtaining an exemption is not contained within any of these paragraphs. I have followed each in turn with my notation to give a clearer explanation, should there be any lack of clarity.

1. The data subject has given his consent to the processing.
That consent, as no legal agreement exists, therefore, also does not exist.
2. The processing is necessary-
(a) for the performance of a contract to which the data subject is a party, or
(b) for the taking of steps at the request of the data subject with a view to entering into a contract.
For both (a) and (b), there is no contract in existence.
3. The processing is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by contract.

According to the Information Commissioners Office (I.C.O.), exemption 3 includes all other statutory obligations for which the interests of national security and welfare override personal privacy.

These obligations allow for the provision of data to Official agencies and organisations, e.g. disclosure to crime prevention agencies (Police, Intelligence Services, etc), official Government agencies (DVLA, DSS, Passport Agency, etc.) and health authorities, etc., and for any other purpose not agreed within a civil contract.

We know that the three major credit reference agencies are not Government bodies, nor official agencies, but are “for-profit” companies - even though they like to think they are official. None of these three agencies are listed in the appropriate Data Protection Act Schedule that names the specific organisations that are permitted any such exemption rights.

4. The processing is necessary in order to protect the vital interests of the data subject.”

With reference to the I.C.O. again, this is interpreted as “anything that affects the data subject as a matter of life and death”. This clause is included in the Data Protection Act to permit data, like medical records or contact details, being disclosed in emergency situations. I do not believe that this case could be described as anything like a matter of life or death.

So, it is clear to see that there is neither statutory provision permitting Barclays Data Controller to assume continued processing rights of my data at his discretion, nor any exemption. I can then only assume that Barclays is relying on the Common Law – as already discussed, above, no such contract is in existence.

You are also, no doubt, aware that any non-agreed disclosure of personal data to third parties, without express written permission, is a criminal offence under Section 35, of the Data Protection Act.

In summary, in relation to this query, I am formally instructing you, as an authorised officer of Barclays, from this day onwards, to:

1) Cease to continue storing, processing or communicating my data; (s.10 Data Protection Act)
2) Remove all such data from automated process systems, as per the provisions of Part II, Section 12 (1) of the Data Protection Act, namely: (s.12 Data Protection Act)
a. “An individual is entitled at any time, by notice in writing to any data controller, to require the data controller to ensure that no decision taken by or on behalf of the data controller which significantly affects that individual is based solely on the processing by automatic means of personal data in respect of which that individual is the data subject for the purpose of evaluating matters relating to him such as, for example, his performance at work, his creditworthiness, his reliability or his conduct.”

Of particular note is the Acts own term “his creditworthiness”;

3) Cease to disclose any data relating to the agreements in question, or any other data relating to the Data Subject, to any third party including, but not restricted to, Equifax plc, Experian Ltd and Callcredit plc; and
4) Instruct Equifax plc, Experian Ltd and Callcredit plc to remove all data pertaining to your records on me, to the extent that no data entry in relation to Barclays will exist on my credit files.

You should be aware that you have, by statute, twenty-one days in which to either comply with my Notice, or give written notice stating your reasons and why you consider the Notice unjustified.

Any failure on your part to adhere to these statutory timescales will automatically be interpreted as your non-compliance with the legal procedure. In that case, you will be expected to unconditionally comply with my Statutory Notice or I shall have no alternative but to refer the matter to Information Commissioners’ Office, or the Court to seek an Order to that effect. Should it become necessary to refer the matter to the Court, then I shall also apply for Court fees and legal costs against Barclays. I shall also reserve the right to seek redress for damages as per the remit of the Data Protection Act, this including (but not being limited to) damage as a result of defamation of my character and damage as a result of having to pay higher rates of interest on loans and mortgages as a direct result of incorrectly recorded financial information due to Barclays negligence.

I trust that I have made my position clear, and that Barclays will now make a serious effort to understand its legal obligations and effect the changes I requested, within the timescales provided.

In any event, I shall expect a written confirmation from you acknowledging the contents of this letter within 5 working days, as per the Banking Code.

Yours faithfully,

car2403

Statutory Notice pursuant to s.10 and s.12 of the

Data Protection Act 1998.

Data Subject Notice;

To: The Data Protection Officer or Data Controller, Barclays Bank PLC

Data Subject: car2403

Address: X

Subject data: "Default” showing on Credit File and processing of information relating to the Data Subject with third parties, both without consent, relating to the Data Subject

The recording of “Default” information by Barclays, without my consent, against my credit file without having an agreement regulated under the Consumer Credit Act 1974, (as amended) or a legal contract, or any processing by you of that data, in any manner, which would be unfair or inaccurate or which in any way, would breach The Data Protection Act 1998.

Therefore, take notice that I require that you cease from processing within twenty one days of the receipt by you of this Statutory Notice, or else that you do not begin to process any personal data of which I am the subject insofar as that processing involves the communication or passing of personal data of which I am the subject to any third party and insofar as the said data relates wholly or in part to the implementation by you of alleged defaults or contractual breaches or breaches contrary to The Common Law.

This Notice is given on the grounds that the processing or continued processing by you of the said data will be likely to affect my credit rating and my reputation and cause substantial damage and/or substantial distress to me and my family members in addition to that which has been caused to date. And that as the processing of the said data in the way referred to in this Notice would violate both the Principles and Data Subject’s rights of The Data Protection Act 1998, to do so would be both unwarranted and unlawful.

Signed,


car2403

Dated this, the 17th day of September, in the year two thousand and seven.

[car2403]

I've sent this off to them recorded post today

[car2403]

This could be the fastest response I've had from Barclays - and I'm not surprised, because I now have them on the run!;

Barclays Bank PLC
Consumer Finance-Customer Relations
P0 Box 362, Manchester,M60 3PN

Telephone: Lo-Call 08701 546195, Fax: 0161 951 2282

21 September 2007

Dear car2403,

Thank you for your letter dated 17 September 2007.

I am sorry to hear that you remain unhappy with my previous response to your complaint.

[Really?!]


It is Barclays’ understanding that section 10 of the Consumer Credit Act 1974 is not relevant unless it can be illustrated that unwarranted damage and distress would arise should certain processing activities continue.

[Yes, and that damage is obvious, Mr Barclays!]

Barclays maintains that our existing and former customers have previously consented, by agreeing to be bound by Barclays’ terms and conditions associated with their accounts, to the collection, use, disclosure and retention of their information as set out in the terms and conditions, and that continued retention is necessary under the terms of the contract entered into. This includes the capture of consent to share data with the credit reference agencies. It is Barclays’ view that such consent was not limited to the duration of an account and that it cannot therefore be revoked at will.

[So, don't sign anything with Barclays as they will take that as consent that they don't have to follow the law and that you consent to their opinion of their rights to process your data - even though my "agreements" on other accounts have no relation on this query!]

Under the requirements of the Act, Barclays must not retain personal data for longer than is necessary for the purposes for which the data is held. When considering suitable retention periods, Barclays considers all its legal, regulatory, operational and commercial requirements. Barclays cannot simply delete a customer record when a contract with a customer is cancelled or terminated. It is Barclays’ standard retention policy to retain personal data about former customers for 6 years after the relationship has ended.

[Shame they've totally ignored the Surlybonds arguments about the difference between "industry standard" and holding a "legal" right to continued processing]

We have received a number of similarly worded letters from our current and former customers, and it would appear that a number of people have also escalated their own complaints to the Information Commissioner’s Office (“Information Commissioners Office”), the UK’s supervisory authority responsible for overseeing and enforcing businesses’ compliance with the Act. The Information Commissioners Office has made its position clear regarding this matter, which is consistent with our own view and which is publicly available on the Information Commissioners Office website (Information Commissioners Office.co.uk).

[Sounds like the CAG is giving them some work to do and they've decided to hide behind an incompetant regulator!]

If you wish to dispute the charges that have been applied to your account, you should log a further complaint by writing separately and directly to the Bank’s Head Office at;

Barclays Bank PLC
Head Office Customer Relations
1 Churchill Place
London
E14 5HP

[Check your records, Mr Barclays! I've already done all that - and WON!!!]

With regard to your Loan Account, I am afraid that the Bank is unable to locate a copy of the original loan agreement at this moment in time.

[Oh, well, I'll just continue to pay you then, should I?]

Please accept my personal apologies on behalf of Barclays Bank PLC for this. Unfortunately due to the size of our organisation, this scenario does occur from time to time.

[Go on, rub it in, won't you! Pah!]

You have however had use of the funds in question and in these situations it is quite normal for the Bank to prove that ‘due process’ has occurred.

[That's a question of fact and you aren't a District Judge, so I think I'll continue to push this issue, despite your opinion Mr Barclays!]

In view of the above comments, I confirm that our recovery action will continue as normal until both debts have been repaid.

[You can continue recovery action if you want, but I know my rights and you can't enforce either of these debts and I will sue you for harassment if you continue, as I've already said!]

I trust my response now clarifies the Bank’s position.

[Sadly, it does and you're wront!]

Yours sincerely,

I'm going for some retail therapy to help me calm down - then I'll be back to the CAG library to get some templates off in response to this...

Fuming!