Thread: How long after disconnection can default be applied? ***WON***

Hi,

I disconnected from orange around Oct 2004 and they then sent the spurious bills which i refused to pay. They lodged a default in Aug 2005.

Is this allowed? Is there a timescale that it has to be applied by? Effectively they are marking my credit file for nearly 7 years as it was marked as non payment before even issuing the default.

I have tried to come to an agreement with Orange but the staff have been brainwashed so much that they cannot see sense. I have offered to pay the £91 they say I owe them if they agree to remove the default, they aren't interested.

Any help, much appreciated as I like thousands others am struggling to get a mortgage over a ridiculous dispute that i am found guilty off without trial, incredibly unfair

Can anyone advise me if there is a timescale that the default has to be lodged by. Im serached all over the internet but cannot find it but surely it must do??? Cheers

Hi again,

I have read in this excellent and informative thread that the default has to be applied within 6 months of the missed payment, http://www.consumeractiongroup.co.uk...fault-3-a.html

I hope that this means i have a case for getting this removed and getting a mortgage.

Could someone possibly advise me on the best people at orange to contact, should i got to the Data Protection Officer?

I would really appreciate some help on this,

Thanks very much

It's not quite as simple as that.

First, though, you need to be clear whether you did owe orange money for services received/used, why you didn't pay (were you in dispute?), whether Orange made you aware of the monies owed and their intention to file a default.

The ICO guidance on defaults states:
- Accounts should not be routinely filed as being in default where full payments or those due under a rescheduled agreement are fewer than three consecutive months in arrears.
- Accounts should normally be filed as being in default where those payments due have not been received for six months.

Are you able to provide more info?

Originally Posted by tadg

It's not quite as simple as that.

First, though, you need to be clear whether you did owe orange money for services received/used, why you didn't pay (were you in dispute?), whether Orange made you aware of the monies owed and their intention to file a default.

The ICO guidance on defaults states:
- Accounts should not be routinely filed as being in default where full payments or those due under a rescheduled agreement are fewer than three consecutive months in arrears.
- Accounts should normally be filed as being in default where those payments due have not been received for six months.

Are you able to provide more info?

Hi

Thanks for your reply,

At the time I was furious with them as they had for 10 months been taking my phone bill from someone elses account. I didnt realise until one day my phone was not working and I called them and they said i owed them £XXX for 10 months unpaid bills, after much debate it was established that one of their staff put someone elses bank account in my direct debit details!!! Absoultely astonishing.

I was livid that they made me pay this up in full before allowing me to make OR receive phone calls as it was clearly their fault. Their attitude was unbelievable. I know i should have checked my bank account but i was 19 at the time and as long as they werent chasing me for money i assumed all was well.

So i said to them that i dont believe them and that i wanted proof as i thought this was another mess up by them. They neverf gave me proof so i never paid. So yeah as far as i was concerned it was in dispute.

Last year i contacted them offering to pay the amount if they removed the default, they point blank said no. They sent me some kind of internal invoice that was full of codes and abreviations but seemed to show that i indeed owed them money. I thought well theres no point paying them for nothing, they have already issued the default and wont budge so why waste my money.

Anyway, i am not trying to profess my innocence or their blame. I believe it is 6 of 1 and half a dozen of the other. BUT i dont feel it is fair that they can just slap this on me for 6 years with no chance of recompence.

Im trying to get a mortgage and guess whats coming back to haunt me. So i want to get rid of it if at all possible.

I have posted a letter today, the gist of it is that i believe the info is incorrect as at the time of serving the notice i had no active account (my number was ported to O2 in October 2004) I said they have broken principle 4 of the DPA and that if they fail to remove it i will take them to the small claims courts. I mean it tho, i really will. If they want to defend their stance on issuing these moronic defaults then let them pay for it.

If the guidance says it should normally be done at 6 months how can they wait 10?

Anyway, what do you think?

Cheers

Originally Posted by buzby

This is the second thread here to promote this erroneous section of CCA defaults (which are irrelevant for mobile contracts).

A mobile default is not a CCJ, or CCA default - it is a word misued by the industry (mobile and debt) to confuse consumers, and boy have they done a grand job. For mobiles, you are in default where toy do not meet the stipulated terms and conditions agreed. So, 4 weeks after your bill is issued, you are in default if you haven't paid it. No ifs or buts.

The networks show this 'default' by noting the delay in payment on your credit file. After week 4 of non-payment, services are usually restricted to incoming calls. (Each network has its own policies), by week 8 with no payment - or a partial payment, all service in and out are blocked. All during this time the account is in default, but the customer has not been 'defaulted'....yet.

By week 12, the amount owing is transferred to the collections department which can be internal or external, the contract is terminated with prejudice, and a final bill calculated adding the amounts required to pay off the obligations in full to the network. This can also be called a Default, but it is not a 'formal' state - as the customers has technically been in breach for 3 months now.

It is the CRA's who latched on to this 'default' and treat it the same was as a CCJ or CCA default - which is totally wrong, but as the customer has already waived their rights to confidentiality by allowing the network to disclose their details to third parties, it is kinda pointless complaining about this after the event.

On the matter of keying eerrors in a direct debit, again the courts are fairly strict in their views surrounding payments. The customer remains liable at all times to ensure payment is made for the services provided. Providing a 'direct debit' does not provide a solution - it remains the legal responsibiliy of the customer to make payments and has no recourse to complain if they don't take the payment as it is never up to the firm to take a payment, if they don't, the customer still remains legally responsible for the debt and can be pursued for it just as if no arrangement was in place.

Surely it is an unfair t&c then if they report ficticious information, e.g a default that is technically not a default?

It amazes me also that they can have their cake and eat it, they get all the benefits of threating defaults and applying them etc but have no responsibility to comply to proper and regulated requirements, even the guidelines dont apply to them.

Surley a credit file can only report info on credit agreements otherwise where do you draw the line? Whether we agree to it in the t& c or not, this MUST be a unfair t&c. For something that has such a potentially detremental affect on a persons life then surely they must have to answer for more than this?

They hold all the cards and can just shut down your line in moments without ever having to justify this. Unless serious action is brought upon them - it shouldnt be stacked up in their favour like this. They have more responsibility than they wish to be accounted for.

Its about time an enquiry was raised into the practice of mobile phone providers (and broadband for that matter)

I dont know a single person that hasnt had problems with over billing, being shut down, defaults, incompetant and rude staff etc etc, this is across the mobile industry not just orange. No companies or industry is perfect but this lot are shocking

Yeah its all very one sided and not regulated enough for my liking.

Im going at them as they cant just insert the default as and when they can be bothered. There is clearly a time when it is too late (e.g 10 years after) so if they dont remove it i will take them to court as i think that the courts will use the only guidance they have available to them, whether or not they HAVE to use this guidance. That is if orange feel it is important enough to send a rep and pay costs. I doubt they will

Will let you know when i hear back from them

Actually they can! Yes, it Is one-sided, but you (presumably) agreed to it. Al they are doing it noting you owe/owed them money and it is this that blights your file. If you DIDN'T owe them money, sure you can get it removed as they are not allowed to display incorrect or misleading data - but if the money was owed, then they will not remove the blight because it remains a 'statement of fact' regarding the way the account was handled. The only time limit is that it must be removed 6 years after application. If the network was tardy in 'closing' your contract this will be a pain, but there are no stipulations on timescales for this - it is just another debt, and not even one regulated by the CCA.

Fuzzy sorry to hijack your post but I have a simular sitaution where as my orange phone was disconnected back in 2004 october due to a payment dispute and was sent to a DCA.

My credit file to this day still shows the account as being active and upto date but still will an outstanding balance.

What i need to know is since this was nearly 5 years ago if I call them to pay it can they default the account to present or would they enter the default date to register back in 2004 ? Also bizarely there is no bad history for the account either.

Any advice wouild be good since i do want to pay it off but i dont want to get defaulted for the privlidge if that makes sense.

Fuzzy .. sorry, I've been away for Easter and couldn't respond sooner.

I don't agree that the reference to the ICO's guidance on defaults is erroneous.

From my experiencel, the ICO applies their guidance to 'defaults' recorded by mobile phone companies as robustly to 'defaults' recorded by financial institutions who extend loans regulated by the CCA. Mobile operators also follow this guidance in developing and implementing their debt collections strategies and activities - it would be unwise of them not to follow it (for a number of very good business reasons).

One of the key points here - whether the CCA applies or not - is that ALL organisations that report financial information to CRAs are required to comply with the requirements of the Data Protection Act and consider any applicable guidance issued by the ICO. For example, Mobile operators are required to ensure that the date a default recorded on a CRA file reflects the date on which the account actually went into default (using a range of criteria) - as Buzby suggests, this could be 12 weeks following a failure to pay an outstanding debt.

On the face of it, it seems that Orange made a number of mistakes in addition to you not checking payments were being taken. Orange should certainly have taken action sooner to contact you about their error in establishing wrong payment details, they should also have made you aware of their intention to file a default given the circumstances of your specific case. I would also suggest that given the billing errors, you have a case to argue that Orange failed to comply with its duty under General Condition 12 of the Communications Act 2003 and which requires mobile and fixed operators to provide subscribers - you - with itemised bills that show a sufficient level of detail to allow subscribers to:
(a) verify and control the charges incurred; and
(b) adequately monitor the Subscriber’s usage and expenditure and
thereby exercise a reasonable degree of control over their bills.

From what you say, Orange failed to supply you with bills for a significant period and so questions compliance with the above.

Under General Condition 13, where a subscriber fails to pay their bills, any action taken by the operator to effect payment or disconnection shall:
(a) be proportionate and not unduly discriminatory;
(b) give due warning to the Subscriber beforehand of any consequent service interruption or disconnection; and
(c) except in cases of fraud, persistent late payment or nonpayment,
confine any service interruption to the service concerned, as far as technically feasible.
Operators are required to send written details of the above measures to subscribers AND publish them on their websites.

I shall leave it to you to decide what course of action is appropriate. You did owe money but Orange should also have made a better job of matters.

I hope this has been of some help.

Originally Posted by tadg

From my experience, the ICO applies their guidance to 'defaults' recorded by mobile phone companies as robustly to 'defaults' recorded by financial institutions who extend loans regulated by the CCA.

This would be extremely useful - if this was the case. However 'experience', and what they say may differ. We need an unshakeable statement that ALL 'defaults' are covered, but based on the reading of the ICO's advice, this is open to more interpretation that is reasonable - given that everything else is quite clearly specified.

If a mobile firm default you, then what we need to make this challenge stick, is the ICO to apply the same rules current for a CCA, but this still is not a 'default' in the accepted sense - so can you expand on this experience you talk of, and how this can be used to benefit others?

Originally Posted by tadg

Fuzzy .. sorry, I've been away for Easter and couldn't respond sooner.

I don't agree that the reference to the ICO's guidance on defaults is erroneous.

From my experiencel, the ICO applies their guidance to 'defaults' recorded by mobile phone companies as robustly to 'defaults' recorded by financial institutions who extend loans regulated by the CCA. Mobile operators also follow this guidance in developing and implementing their debt collections strategies and activities - it would be unwise of them not to follow it (for a number of very good business reasons).

One of the key points here - whether the CCA applies or not - is that ALL organisations that report financial information to CRAs are required to comply with the requirements of the Data Protection Act and consider any applicable guidance issued by the ICO. For example, Mobile operators are required to ensure that the date a default recorded on a CRA file reflects the date on which the account actually went into default (using a range of criteria) - as Buzby suggests, this could be 12 weeks following a failure to pay an outstanding debt.

On the face of it, it seems that Orange made a number of mistakes in addition to you not checking payments were being taken. Orange should certainly have taken action sooner to contact you about their error in establishing wrong payment details, they should also have made you aware of their intention to file a default given the circumstances of your specific case. I would also suggest that given the billing errors, you have a case to argue that Orange failed to comply with its duty under General Condition 12 of the Communications Act 2003 and which requires mobile and fixed operators to provide subscribers - you - with itemised bills that show a sufficient level of detail to allow subscribers to:
(a) verify and control the charges incurred; and
(b) adequately monitor the Subscriber’s usage and expenditure and
thereby exercise a reasonable degree of control over their bills.

From what you say, Orange failed to supply you with bills for a significant period and so questions compliance with the above.

Under General Condition 13, where a subscriber fails to pay their bills, any action taken by the operator to effect payment or disconnection shall:
(a) be proportionate and not unduly discriminatory;
(b) give due warning to the Subscriber beforehand of any consequent service interruption or disconnection; and
(c) except in cases of fraud, persistent late payment or nonpayment,
confine any service interruption to the service concerned, as far as technically feasible.
Operators are required to send written details of the above measures to subscribers AND publish them on their websites.

I shall leave it to you to decide what course of action is appropriate. You did owe money but Orange should also have made a better job of matters.

I hope this has been of some help.

Hi,


Thanks for your reply, ive been so busy ive not had chance to come back and update people.

Basically, i sent numerous emails to the executive officer at orange to get them to justify why they didnt file the default until 10 months. They just kept regurgitating the same general info and avoiding my direct question - for 6 email replies. They are stuck firm in their blind belief that they can do as they please and everyone else can swivel. I had been emailing the CEO
also as i hoped he might realise that i will have cost them far far more in admin costs to fight this than they lost in the first place. I also see no benefit other than spite for them to be so desperate to continue saying this. I can honestly say that they have well and truely done a good job of ensuring that i will NEVER have anything to do with orange or associated groups ever again.

I sent them a final email to say that they must answer why they waited so long and their justification or i will start court proceedings. They didnt reply, so I have filled a claim against them through money claim online for damages and distress for not being able to get favourable credit. this was filed on the 28/04, i have heard nothing from them yet. I was hoping that they would finally pull their heads out the sand and just remove it from my file.

Can anyone give me some idea of what may happen if they eitheir dont respond? Will the courts order it to be removed? Is it likely that they will not respond? I was thinking they would call me and say something like they will remove the default but wont pay my fees.

I doubt very much they will defend this but their ignorance so far wouldnt surprise me if they spend ££££ on legal fees defended.

Any opinions would be gratefully received

cheers

You can certainly ask for the courts to remove it - but the Small Claims route may achieve this - but the Moneyclaim is out as you are requiring a course of action, not an amount of money.

As for whether you will be successful - I have searched many sources to discover whether the ICO does indeed treat mobile phone defaults in the same way as 'financia' ones - and I cannot find this at all No guidance, no rulings, simply a default 'must be accurate'.

Other CAGgers have found if you hassle them, they may well make a point of removal, but the whole point is that the default must be accurate - that it took 10 months to be applied is not a reason for removal. Unfortunately.

Originally Posted by buzby

You can certainly ask for the courts to remove it - but the Small Claims route may achieve this - but the Moneyclaim is out as you are requiring a course of action, not an amount of money.

As for whether you will be successful - I have searched many sources to discover whether the ICO does indeed treat mobile phone defaults in the same way as 'financia' ones - and I cannot find this at all No guidance, no rulings, simply a default 'must be accurate'.

Other CAGgers have found if you hassle them, they may well make a point of removal, but the whole point is that the default must be accurate - that it took 10 months to be applied is not a reason for removal. Unfortunately.

hi, yeah thanks i thought that the money claim was the small claims court?

Ive been hassling them for 2 years, on and off, this time though i have really gone at them full ball and they just refuse to remove it.

Ill let you know

Moneyclaim is simply a sub-set of the Small Claims process in E&W, used for... claiming money.

Good luck!

fuzzyfuzzy ,,, been away .. sorry for delay in reply.

It is doubtful they will remove the default if you did owe them money. HOWEVER, they clearly have a case to answer over the manner in which they have dealt with you and the recording of your data. I would suggest you:
(a) contact OFCOM and report orange for failing to comply with it's obligations under General Condition 12 and 13 (above) - explain why - and ask OFCOM to investigate and confirm what it intends to do to ensure Orange and other telcos comply with the conditions. Ask them to provide details of their investigation

(b) Report Orange to the Office of the Information Commissioner - you need to focus on the inaccurate processing of your information, beginning with the fact that they sent your bills to another customer .. then focus on the dates and amounts of the default and present the facts of any inaccuracies (help the ICO make a case!), also explain whether ORANGE gave you any notice of intention to file a default (either verbally or in writing).. ask the ICO to assess whether in their view the processing of your data - in respect of incorrect billing and recording a default - has been carried out in accordance with the requirements of the DPA 98 and their Technical Guidance on Defaults ...

(c) mobile operators must belong to an Alternative Dispute Resolution (ADR) scheme (see http://www.ofcom.org.uk/advice/guides/complain.pdf) ORANGE .. belongs to CISAS (CISAS: Communications & Internet Services Adjudication Scheme) .. you can complain to an ADR if a company has not resolved your complaint within 12 weeks or if they have issued you a deadlock letter .. again, you can refer to the failure to comply with the general conditions and inaccurate processing .. etc

As for the ICO and their view on mobile defaults .. I have significant experience working for large corporates and dealing with a range of regulators and trade groups in the area of data privacy compliance. I can assure you that the ICO does apply the guidance on defaults (and debt collection) to the mobile industry even though they may not be caught by the CCA - indeed, the ICO's technical guidance was written to avoid restricting it to CCA regulated agreements. The ICO is genuinely concerned about the harm that can be caused to an individual by the incorrect or inaccurate recording of data on credit files ...

The ICO would look at a number of things in your case - the fact that Orange billed the wrong customer, whether you contacted Orange about this error and the response of Orange, whether Orange notified you of the debt and their intention to file a default (the DPA does not require such notice . but the ICO would look at it from a best practice perspective -but again, refer to the LEGAL obligation of Orange to notify you in writing of their intentions under GC13 above - the ICO would look at this) ..... inaccurate recording of the dates and/pr amount of a default) ......... the maximum period for recording a default is 6 months from the date the default occurred .. and the date recorded must be the actual date the account went into default and NOT the date the data were sent to a CRA .. normally, a default would be recorded by a mobile operator after approx 3 months .. some operators would use the date explained in the notice of intention to file a default ...

Orange may did in it's heels and refuse to remove the default, ensuring only that it accurately reflects the amounts/dates etc .....

i was thinking, do you think its worth me doing a dsir? just to see if theres any descrepancies that i can use as leaverage?