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RBS Gold Mastercard default help please


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Hi everyone, I hope someone can give me advise on what to do next. Having read in the forum that it might be possible to get defaults removed from a credit file, I decided to give it a go with RBS. I sent them a letter relating to the default and after threatening them with the OFT ect I finally received this reply :-

 

From the information now provided by you, received 18 Aug 2007, I can advise the default held with the Credit Reference Agencies relates to your RBS Gold MasterCard Account xxxx xxxx xxxx xxxx

As you are aware this account was fully repaid on 11 Oct 2004, and therefore, there is no active agreement between RBS and you with regards to the above account.

The Consumer Credit Act is for active agreements and therefore we are under no obligation to provide you with the requested documents as your obligations to us under the agreement has ended.

There is no legal requirement for us to provide you with a "signed true and certified copy of the original default notice".

A default notice is not the same as a default entry and your account was reigistered as Default with the Credit Reference Agencies due to non-payment of your account prior to the date of registration 27 April 2004. I am satisfied that the info of your account was properly notified to the credit reference agencies and you would have received the appropriate notifications. If you disagree , you have the right to apply to the court etc etc

Could someone tell me if this is a standard letter to get me to go away? Or do I accept this as is, and forget about trying to get the default removed.

 

Advice as always will be greatly appreciated.

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They're trying it on. They have to provide copies of the default notices etc....so I take it that they haven't carried out the correct procedure. They are right about not having to comply with a s.78 request so what I would do now is SAR them with £10 postal order SPECIAL DELIVERY requesting ALL information they hold on you including a true copy of the original executed agreement. They ahve 40 days to comply and then the fun can begin................

You may receive different advice to your query as people have different experiences and opinions. Please use your own judgement in deciding whose advice to take.

 

If in doubt seek advice from a qualified insured professional. Any advice I have offered you is done so on an informal basis, without prejudice or liability.

 

If you think I have been helpful PLEASE click the scales

 

court bundles for dummies

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Specify you want a true copy of your original executed agreement otherwise they may not send it you & there willnbe no doubt you requested it aas part of ALL information they hold on you.

 

It should contain your signature and personal details (or more likely if more than 6 years won't ). All default notices (if any) should be supplied by them under "ALL".

You may receive different advice to your query as people have different experiences and opinions. Please use your own judgement in deciding whose advice to take.

 

If in doubt seek advice from a qualified insured professional. Any advice I have offered you is done so on an informal basis, without prejudice or liability.

 

If you think I have been helpful PLEASE click the scales

 

court bundles for dummies

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Last month I sent a letter to Crap one about the default I had received form them. They did not reply to me at all so I sent them a second letter giving them 7 days to reply.

 

They have not even acknowledged my letters which were both sent by recorded delivery. Could you point me in the right direction of the addresses I now need to write to in order to report them? Also if there are any templates I can use.

 

Thanks

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You can report them to the ICO if they don't respond but really you will need to file an N1 to force Cap One to give you the info http://www.consumeractiongroup.co.uk/forum/bank-templates-library/6971-data-protection-act-non.html

HAVE YOU BEEN TREATED UNFAIRLY BY CREDITORS OR DCA's?

 

BEWARE OF CLAIMS MANAGEMENT COMPANIES OFFERING TO WRITE OFF YOUR DEBTS.

 

 

Please note opinions given by rory32 are offered informally as a lay-person in good faith based on personal experience. For legal advice, you must always consult a registered and insured lawyer.

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  • 3 weeks later...

Ok, back to Royal Bank of Scotland Card Services

 

Received letter today offering me part settlement (£99 of a £320 claim). They are now totally ignoring any requests as far as my Default Removal is concerned. I have now issued them with the following request based on Surlybonds' post, thank you for that.

 

Laura Stanez

RBS

Customer Care Team

PO Box 6050

Southend-on-Sea

Essex. SS1 9AJ

Date: 24.9.2007

Dear Laura

Account number – xxxx xxxx

I wrote to RBS on 17th September 07 as well as 30th July, 15th and 29th August and 3rd September regarding statements of my account with RBS Card Services, which I have received and thank you for this information. I have copies and recorded delivery receipts for the above.

I requested that you repay all the default charges that have been applied to my old account with RBS Card Services AND asked you to look into the matter of the default that appears on this account with all CRA’s.

Thank you for your letter dated 20th September 2007. I am sorry to hear that this is the bank’s final word on the matter. But the option you give me to go to the Financial Ombudsman Service is not the only option available to me as you are well aware. As you have blatantly ignored my requests for information regarding my account,

Once again I must also draw your attention to my request regarding a default on this account that appears with all Credit agencies.

 

Re: Formal notice to desist from processing or disclosing personal subject data

You are now in breach of your duties under Section 78 of the Consumer Credit Act. I now give you one final opportunity to reply and supply me with the relevant information I requested. If you do not answer my original questions and reply within 7 days I will have no choice but to escalate the matter to the County Court for non Compliance under the data protection act. As I have made every attempt to deal with this matter as informally as possible, I believe they will look on me favourably as I have done all I can not to waste the Court’s time. But you now leave me no choice.

 

I have recently conducted an audit of my personal credit reports supplied by Experian, Equifax and CallCredit.

 

 

I am contesting that RBS’ 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 RBS to continue processing, or disclosing, my personal subject data was revoked upon termination of that original contract and I hereby reiterate that revocation. I also do not recall receiving any such Notice of Default being served on me, as required by the conditions of the Consumer Credit Act 1974. Unless RBS can provide a true copy of the said Notice, then I consider that any default entry on my credit files to be wholly unwarranted.

 

However, if you can supply the copy, then I also contest RBS‘ continued processing on the following grounds.

 

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, RBS is still processing data after the cancellation of the contract, whether or not this is a simple renewal process of the default flag, daily or by other timing factor. As that contract is no longer in situ, then my written permission has also ceased from the date of cancellation.

 

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".

 

I have taken the matter up with the Credit Reference Agencies, and they had claimed that they had a

“legal right” to maintain this type of adverse entry for up to six years. When I challenged them to quote me the exact Statute that includes this so-called “legal right”, they remained remarkably quiet. Only after my continued insistence of disclosure did they eventually concede that, whilst they have no statutory right, it is
“standard industry practice” but they added that they are “allowed to by Law”. After further challenges, they finally admitted that unless this was a County Court issue, their term actually referred to contractual Law, but continued to emphasise that it was “standard industry practice to record default entries for six years.”

 

“standard industry practice” does not correlate with “legal right”?

 

Further investigation has also led me to conclude that the only six-year data ‘retention rule’, to which they may adhere to, is in relation to information in the public domain, e.g. Bankruptcy Orders/Discharges, IVAs, CCJs, etc. These are kept in the public domain for six years. But, these are sealed orders issued by a judge through the Courts who oversee the ultimate jurisdiction in all matters relating to Law, be it the criminal code or the Common Law. It is not up to Credit Reference Agencies, or lenders, to decide legal issues.

 

In addition, the agencies may also hold information that is deemed ‘in the public interest’ for the avoidance of credit fraud or deliberate repayment avoidance; I refer, of course, to CIFAS and GAIN entries on a credit file. My former account was not subject to any such marker, nor is my former civil contract with RBS a public matter.

 

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. RBS) 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 are 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 RBS has not applied to HM Secretary of State for an order allowing you an exclusion, which leaves RBS 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 RBS’ 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 RBS’ 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 was terminated upon the cessation of the contract and, as stated earlier, I reiterate the revocation herein, and by the attached Statutory Notice.

 

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 (a), there is no contract being performed, and for (b), RBS’ and I are not entering into any form of contract, and certainly not at my request.

 

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 all know that the three major credit reference agencies are not Government bodies, nor official agencies, but 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 my former account details 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 RBS’ Data Controller to assume continued processing rights of my data at his discretion, nor any exemption. I can then only assume that RBS is relying on the Common Law, and contractual law, as determined by the contract that both parties originally agreed.

 

However, the contract that I originally signed with the bank, only gave RBS permission to process data during the term of that contract. I think it is fair to assume that you agree that the contract was terminated some years ago, whether or not a Default Notice was served.

 

The contract neither included any other permission, nor did it imply that your perceived 'rights' to process my data would be ‘in perpetuity’. There was also no clause contained within the contract that stated that RBS had any arbitrary right to continuing processing data for up to six years after the ending of the contract.

 

Also, I cannot recall any clear statement that gave my express permission for RBS to continue disclosing my subject data to third parties after the end of the contract. You are 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.

 

However, if I am mistaken, and the contract did, indeed, specify unlimited time extensions, then you must provide me with a copy of those signed terms indicating where I have agreed to them. This should be sent to me as one of your enclosures, if you wish to contest the enclosed Statutory Notice. 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.

 

In summary, in relation to this former Credit contract, I am formally instructing you, as an authorised officer of the Bank, from this day onwards, to:

1) cease to continue storing, processing or communicating my data;

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:

(1) 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 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 RBS will exist on my credit files.

 

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 the Court to seek an Order to that effect. Should it be necessary to refer the matter to the Court, then I shall also apply for Court fees and legal costs against the Bank. I shall also reserve the right to seek redress for damages as per the remit of the Data Protection Act.

 

 

I trust that I have made my position clear, and that RBS will NOW make a serious effort to understand its legal obligations and effect the changes requested. Should you be in any doubt as to the Banks obligations as a Data Controller, then I would advise that you consult your corporate counsel.

 

 

In any event, I shall expect a written confirmation from you acknowledging the contents of this letter within 5 working days, as per the requirements of section 15.3 of the Banking Code.

 

Yours faithfully,

 

 

 

 

 

 

 

 

 

 

Statutory Notice pursuant to Sections 10 and 12

 

of The Data Protection Act 1998.

 

Data Subject Notice

 

 

 

 

Laura Stanez

RBS

Customer Care Team

PO Box 6050

Southend-on-Sea

Essex. SS1 9AJ

 

Data Subject: xxxxxxxxxxxxx

 

Address: xxxxxxxxxxxxx

xxxx

 

Whereas I have been a customer of RBS and whereas I MAY have consented in my contract with you to the disclosure by you of certain data to third parties, but until I receive that information from you I cannot say at this time, at no time did I consent and neither was it within the contemplation of the parties to the contract that I did consent to the 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 Notice, or else that you do not 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

 

 

 

 

 

 

xxxxxxxxxxxxxxxx

 

Dated this 24th day of September in the year two thousand and seven

 

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It wouldn't be so bad if the default was a true representation of me, but I had a period of a few months where, like many people I ran into trouble. Any defaulted account was paid back in full and settled within a month of default. There is no justice sometimes, I should have just made myself bankrupt and kept the money!!:(

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