car2403 -v- o2 (& Wescot DCA)(Default removal)

[car2403]

After reading a LOT about Default removal attempts, I've heard in other threads that o2 defaults are notoriously difficult to challenge as agreements with them aren't covered by the CCA and Data Protection Act in a way that makes it easy to get them removed.

I had 2 accounts with o2 that ended up having defaults applied to my credit file. (1 of them isn't in my name, but for arguments sake, lets say it is so this doesn't get confusing!)

On reading those other threads, most people suggest contacting o2 & the DCA (Wescot, in both of my cases) offering reduced settlement that is conditional on the default being removed. Clearly settling the account without asking for the default removal reduces the chances of getting the removal as there is no incentive to them.

So, I've sent o2 this letter;

Dear Sirs,

Offer of reduced settlement, conditional on default removal; Account XXX

You will be aware that this account is currently being managed by Wescot Credit Services, due to being passed to them for collection by yourselves. I have sent them a copy of this letter, also.

Having recently reviewed my personal financial position, along with a copy of my credit file obtained from Experian, I was concerned to note that a “default” has been recorded against this account in my name – this is a situation that I would like to remedy as soon as possible.

I would like you to consider acceptance of a payment in reduced settlement to clear this debt – as part of this settlement, I would like to negotiate the removal of the default on my credit file.

The reason why this account ended up in this position is that I suffered severe financial difficulties due to being overcommitted – this was due to several unavoidable personal problems that I had at the time, including a period of absence from work due to sickness and a reduced income. It has never been my intention to avoid payment.

I am willing to negotiate settlement with all my outstanding creditors with the aim of avoiding such situations again in future. I am also further trying to improve my credit file, as I have a very high rate of interest being applied to my mortgage account, amongst others, that are a direct result of adverse credit, such as this account.

To clarify, I am currently in a position to consider a reduced offer from you to settle this outstanding balance. As part of that settlement, I would like you consider removal of the default marker on my account for the reasons outlined in this letter, as a gesture of goodwill. If you can make a satisfactory offer of reduced settlement and agree to remove the default marker, I would be very keen to consider such an offer at this time.

I look forward to hearing from you very soon.

Yours faithfully

I also cc'd Wescot and sent them this as a cover;

Offer of reduced settlement, conditional on default removal;

O2 A/C; XXX – your reference; XXX

Please find enclosed a copy of a letter that I have today sent to your client, O2 (Online) Limited, for your information.

Please note that my financial situation has not changed, so this is not an indication that I wish to review my monthly payments to you under the current agreement – I have recently successfully recovered illegal bank charges that have been applied to several accounts that I hold, which has allowed me to make this offer of reduced settlement.

This offer is conditional on O2 agreeing to remove the default they have entered against me – if this cannot be negotiated, I will be making similar offers to my other creditors with larger balances in an attempt to both reduce my current outstanding indebtedness and improve my credit rating, therefore improving my overall financial situation. If this is successful, I will review my situation again further and contact you again – however, this is my initial approach, of which I wish you to be informed.

Yours faithfully

In response to this, I've received 2 of these letters from Wescot - 1 for each account;



My question is this - is the offer for reduced settlement conditional on default removal accepted? If it is, I will happily pay these amounts (thanks to some CAG Bank Charge reclaims!) to get these defaults off my credit file.

Personally, I want to write to Wescot to say something along these lines; (I have the same letter drafted for the other account with the right settlement amount)

Offer of reduced settlement, conditional on default removal;

O2 A/C; XXX – your reference; XXX

Thank you for your letter dated 20 August 2007, acknowledging my offer of reduced settlement.

I note from your letter that no reference is made to the removal of the default from my credit file up on paying the amount of authorised settlement – namely £16.56.

Can you please, therefore, confirm in writing that upon payment of £16.56 being received by yourselves that the default entered by o2 will be removed from my credit file? Please note that simply marking the default as “satisfied” is not acceptable, and that I seek full removal of the default.

On receiving this confirmation, I will consider your offer further and contact you in due course.

Yours faithfully

If they haven't even considered removing the default they will just reply saying "no" and I'll have no chance to get it removed. If they have, then fine, all is well - but, if I send this I'm asking a question... if I don't I could challenge that by having my "request for settlement authorised", I could argue that they've "agreed" to remove these defaults on making these payments.

Any advice?

[car2403]

B U M P

I'd really appreciate some advice on this one, as I don't want to miss out on negotiating a settlement...

[car2403]

I'm sending this off today;

Offer of reduced settlement, conditional on default removal;
O2 A/C; XXX – your reference; XXX

Thank you for your letter dated 20 August 2007, acknowledging my offer of reduced settlement.

I note from your letter that no reference is made to the removal of the default from my credit file up on paying the amount of authorised settlement – namely £16.56.

Can you please, therefore, confirm in writing that upon payment of £16.56 being received by yourselves that the default entered by o2 will be removed from my credit file? Please note that simply marking the default as “satisfied” is not acceptable, and that I seek full removal of the default.

On receiving this confirmation, I will consider your offer further and contact you in due course.

Yours faithfully

[car2403]

No reply to my letter.

I'm thinking of sending payment to settle these debts, with a cover note stating what my terms are and saying "if you cash these cheques in settlement, I will assume that you are agreeing to my default removal terms and look forward to hearing from you in confirmation of such removal within 14 days of the accounts being settled".

Any thoughts on this, or how to move on?

[car2403]

I've received a letter from Wescot about one of the accounts, but not the other, stating that the dispute raised has been recognised and that no further collection activity will take place on the account until the dispute is settled.

Confused now, as I haven't raised a dispute - and they've still failed to reply to the letter I sent on 30/08?

[car2403]

Sod this sitting waiting around for them to get back to my - surely if Wescot have raised a dispute, I should be dealing with o2 again now?

Anyway, I'm writing to o2 in the same terms (default removal and I'll agree to settle early) to see what they say.

This may be tougher than I thought!

[car2403]

Still no reply from O2, which is hardly a surprise really.

Looking at their latest terms and conditions, (I'm assuming they'll argue that I'm bound by the most up to date version, rather than the ones they had when I opened/had the account with them) they don't even have a clause to disclose information to the credit reference agencies? Links are available here;

O2 Privacy policy - Terms & Conditions - O2

and here;

Your airtime contract - Terms & Conditions - O2

Given this, would the Surleybonds s.10/s.12 Data Protection Act letters work?:

Defaults - a proposed method for removal and the full template letter

If this would work, I'd need to be prepared to go all the way to Court, due to a spineless regulator, for the reasons discussed here;

http://www.consumeractiongroup.co.uk...ml#post1086715

I'm going to send a Data Protection Act Subject Access Request off to see what information they do hold about me, along with that s.10/s.12 letter/notice.

[car2403]

Received a letter from Wescot regarding the smaller of the 2 accounts saying that, because of the dispute I've raised and their investigations, (I don't know what they are talking about! I only asked if they would remove the Default if I settled early!) they have passed the account BACK to o2 and will no longer be pursuing the debt.

o2 have until 30 October to respond to my s.10/s.12 notice and 10 November to respond to my S.A.R - (Subject Access Request). Not holding my breath either way, given past performance on responding...

[car2403]

Response from o2;

Dear car2403

Thank you for your letter 1st October 2007 and the accompanying Data Subject Notice of the same date requesting that 02 desist from processing your personal data by virtue of providing information relating to your mobile account to credit reference agencies. I note that you are concerned that the continued processing of data in this way is in contravention of the data Protection Act 1998.

According to 02’s records there is still a balance owing on your mobile account. If you believe that this is in error and that you can show that you have paid your account in full, please forward evidence of your payment and we will update our records. If you dispute the amount that is actually owed by you, please contact us to explain why. In either case, please contact:

02 Customer Relations
P0 Box 202
Houghton Regis
LU6 9AG

You may wish to note that a section 10 notice (under the Data Protection Act) does not apply where the processing is necessary for the performance of the contract to which the data subject is a party. There clearly was a contract being performed when you took service under your airtime contract. This contract required you to pay consideration to 02 for the services; your obligation to pay under the contract is still outstanding. Accordingly, 02 has a right to continue to process your personal data to ensure performance of your contractual obligations under the airtime contract and we believe that this is warranted for the purposes of our debt recovery. Accordingly, we are unable to comply with your request to cease such processing.

I trust this response reassures you that 02 is not in contravention of the Data Protection Act in relation to this matter.

Yours Sincerely
Daniel Muckle
Compliance & Disclosure

My response;

I refer to your letter dated 18 October 2007.

Your response baffles my understanding somewhat, as you have failed to reply with your justification against this argument;

1) The letter you have sent me is a standard response to this type of request and has failed to take any of the queries raised with proper consideration.

2) You have failed to justify your continued pursuance, processing and disclosing of my personal information, which was specifically referred to in my letter.

3) Your argument that the account still has an outstanding balance, thereby allowing you to continue to process my data in this way due to “debt recovery” has no basis in law – if you are able to provide legal authority for this contention, I will be pleased to see that in your reply. I refer you back to my letter dated 1 October, which outlines my argument that O2 neither had my consent to process in such a way, or that any consent provided was ceased when the agreement was terminated – that cessation of consent repeated within that letter also.

4) You have, therefore, failed to comply with my Statutory Notice under s.10 & s.12 of the Data Protection Act 1998.

I find this situation totally unacceptable. Therefore, take notice, that I require your full response to my previous letter as outlined – I am happy to extend this period by 7 days to allow you time to respond, in which you must either comply with my request or provide your legal basis (please note that a simple denial of my argument does not suffice) before 29 October 2007 to avoid the action I have outlined in that letter.

Yours sincerely,

[car2403]

Next reply from o2;

In response to your letter dated 22 October 2007 please find enclosed a positioning statement from the Information Commissioners Office with regards to credit agreement data sharing

In which they've enclosed this, taken from the Information Commissioners Office website;

http://www.ico.gov.uk/upload/documen...%20sharing.pdf

So, where in that document does it answer the questions I've asked?

[car2403]

I've sent a Final LBA on this one

[orfoster]

Very interested in this one. I expect you have read my thread on O2. I have now complained to the Information Commissioner as they did agree to remove my default on the phone. They then denied it after I settled to I got a Subject Access Request back and sure enough in the notes I think it mentions it about 8/9 times that I have agreed only if my default is removed which was agreed. Wrote in and got a snotty reply, tried Data Protection S.10 letter and got no where and they have simply ignored further letters so I complained to Information Commissioners Office, did that about a month ago and still haven't had anything back.