Nationwide Credit Card debt Any help appreciated!!!

[sytra]

Ok yet another prob with NW, the defaults i mentioned earlier were already invalid but i was just trying to get more ammo to hit them with.

 

But today we recieved a letter from NW about an account that we are trying to claim charges on (every penny of the overdrawn balance is charges)

 

the letter goes:

" Your flex account is still overdrawn without our agreement (i know, refund the charges then i will be in credit)

 

"We'll also issue you with a default notice which may lead to legal action to recove the debt"

 

"no earlier than 28 days from the date of this letter we will register a default with one or more credit agencies"

 

Even though i am still trying to claim my charges back are they legally allowed to register a default or is against OFT rules, i have had no default notice yet, just this letter saying they will issue on (which will still be incorrect like the last ones).

 

Sytra

[sytra]

Ok yet another prob with NW, the defaults i mentioned earlier were already invalid but i was just trying to get more ammo to hit them with.

 

But today we recieved a letter from NW about an account that we are trying to claim charges on (every penny of the overdrawn balance is charges)

 

the letter goes:

" Your flex account is still overdrawn without our agreement (i know, refund the charges then i will be in credit)

 

"We'll also issue you with a default notice which may lead to legal action to recove the debt"

 

"no earlier than 28 days from the date of this letter we will register a default with one or more credit agencies"

 

Even though i am still trying to claim my charges back are they legally allowed to register a default or is against OFT rules, i have had no default notice yet, just this letter saying they will issue on (which will still be incorrect like the last ones).

 

Sytra

 

Sorry just found another post somewhere that says the letter cannot be classed as a default and they cant pass info without a CORRECT default notice served.

 

But what about the fact i am disputing the account should they still be talking about default notices etc?

[foolishgirl]

Did you send them a letter stating that the account was in dispute? If not, do so now, pdq telling them why. Use a CAG template & amend accordingly.

 

They shouldn't issue a default notice whilst the account is in dispute but they probably will 'cos in case you didn't already realise it already from this forum, banks think they're above the law! And even if they don't actually issue the notice they might record a default on your file anyway.

 

If they go ahead with the default, you'll eventually have to go thro' the long long process of getting it removed from your files when you've settled your charges claim but you could insist on the default removal as part of your bargaining/court claim.

[sytra]

Hi yes they are well aware that the account is in dispute, it was initially disputed back in Nov07 but we have just recently sent them a second LBA, when we get the response from that then we will start the c/c

 

Sytra

[foolishgirl]

I assume you have read Bankfodder's sticky on this?

 

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/149403-would-you-like-clean.html#post1580664

[spaspeckerthedull]

I assume you have read Bankfodder's sticky on this?

 

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/149403-would-you-like-clean.html#post1580664

 

linky no worky

[lookinforinfo]

This link does work

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/149403-would-you-like-clean.html#post1580664

[sytra]

Anybody got an idea of what my next move should be?

 

E'mailed NW pointing out that their default notice didn't comply and should be removed from files etc. But they have sent a reply stating "i can assure you that our Default Notice is fully compliant with UK law" and we will continue to report this data to the CRA's.

 

Now as we all know their DN's do not comply they fall foul on at least 3 seperate occasions, so what should we do next?

 

Sytra

[veester]

Sounds like a bunch of balloney to me sytra.

I had an issue like this with Citif

 

A) They said default was sent

B) I said i didn't get it and anyway had agreed a Full and Final figure without prejudice

C) They then could not supply a copy

D) We spoke on the phone, then they removed it - i got a letter confirming it.

 

The letter i used it pasted below; it should do the job

 

 

 

 

 

 

4th April 2008

 

 

{Address}

 

 

 

 

Dear Sir,

 

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

 

I have recently conducted an audit of my personal credit reports supplied by Experian, Equifax and CallCredit; and this is the second letter I am writing to you, this time using Registered Delivery.

 

It is noted that there exists, within all three files, an entry referenced as “XXXX” indicating a former Loan (now closed) ending reference XXXX is recorded as “In Default” albeit showing a ‘satisfied’ entry.

 

I am contesting that XXXX 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 CitiFinancial 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 the Bank 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 XXXX’ 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, XXXX 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.”

 

As a highly-educated company manager for a major corporate, may I respectfully presume that you likewise recognise that “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 XXXX 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. XXXX) 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 XXXX has not applied to HM Secretary of State for an order allowing you an exclusion, which leaves XXXX 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 XXXX 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 XXXX 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), XXXX 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 XXXX Data Controller to assume continued processing rights of my data at his discretion, nor any exemption. I can then only assume that CitiFinancial 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 XXXX 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 XXXX 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 XXXX 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 loan 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 XXXX plc 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 XXXX 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,

[sytra]

does anyone have a copy of the regulations relating to Consumer Credit Enforcement, Default and Termination Notices Regulations 1983 SI 1983/1561 they could mail me? or know a link to them on the forum, i have tried to find them but have no luck....

 

I have an ongoing dispute with NW i wish to try and get settled.

 

Thanks in advance

 

Sytra

[pt2537]

yes i do, if you PM me a email address i will send you them

[johnto]

hi there can anyone help me out!!!! ive checked my credit file due to wonting to get a new car,but have noticed HSBC bank have got a default against me in 2004 for a credit card this account was settled but is still showing a default and has never been up dated since 2004,ive tryed phoning the bank but i keep being pasted on and being told theres nothing they can do!!! please help.