Help please, im stuck !

[vselym]

Have read dpa as many times as i can without going doolally !

Question is where do CRA's obtain the right to record Bankruptcies, IVA's and CCJ's ?

As far as i can see i've never signed any t&c's which allow them to process my information that is in the public domain ? and i certainly never signed an agreement with them ?

It may have been said before, so apologies and a signpost to thread would be appreciated thanks

 

vselym

[dx100uk]

there is a clause in the agreements you signed that allows agencies to exchange/inform the cra's about your credit activities.

 

dx100uk

[vselym]

dx100uk

 

do you mean they can share data with anyone else signed upto the cra ? ie another financial institution

And the agencies you refer to being the Insolvency Service for example ?

I'm only asking for some clarification, as the Insolvency Service stipulate that they do NOT inform cra's of court orders.

I understand the argument that my signing tandc's with say a bank allows them to contact the cra's and that allows the cra to process my data, but as has been discussed here many times, no agreement = no right to process. I dont have any agreement with a court, nor they with a cra so where is this authority ? The piggybacking authority cra's rely on surely doesn't exist with a court order, eg bankruptcy

is this logical or not ?

 

sorry to ramble

 

vselym

[car2403]

This is probably bad news, in that case;

 

http://www.ico.gov.uk/upload/documents/library/data_protection/practical_application/credit_%20agreements%20-%20data_%20sharing.pdf

 

Remember though, that the ICO only offers an opinion on the application of the Data Protection Act. I, personally, (along with many others on this forum more qualified to have an opinion on this than I am) disagree with the ICO's stance.

 

BTW - I know this refers to Credit Agreements, which isn't your issue, but I would bet my house (well, it does belong to my Mortgage Company anyway!) on the ICO applying the same thinking to other areas...

 

This is definately something that can be challenged, as there is no LEGAL basis for his opinion. I do, however, think that a "policy decision" would be taken to allow the CRA's to process data, if it was ever challenged, as how would the financial market work if they needed your written consent?

 

As you're questioning INCORRECT data, not whether they have consent, you should be ok though.

[vselym]

i think i've read that before, who pays the ICO's wages one asks ? I'm not gonna rant now 'cos time is short !

Here's a draft of my letter to Experian, if any one has pointers/advice, would be much appreciated

 

Experian Ltd

PO Box 8000

Nottingham

NG80 7WF

26th November 2007

Our Ref :

FAO Data Controller

Letter 3

Dear Sir/Madam

NOTICE PURSUANT TO S.10&S.12 DATA PROTECTION ACT 1998

 

As a data controller I would draw your attention to the following

Data Protection Act 1998 Schedule 1 Part 1 The Principles

 

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

Having reviewed my credit report file held with yourselves, reference XXXXXXX, under the heading “Public Records”, entry “J1” reads as follows

Name and address: MINE

Information type: Bankruptcy Order

Date: 01/05/2002

Satisfaction date: 04/2005

Source: London Gazette

Note: When your bankruptcy has been annulled or discharged we will be

informed by the Insolvency Service.

You state that your “source” is the London Gazette, which despite numerous attempts by myself to locate this record, has failed. I therefore require that you substantiate this claim.

Your “note” informs me that the Insolvency Service will notify you of an annulment, please take note that the Insolvency Service expressly states that they do not contact credit reference agencies with details of annulments.

I enclose with this letter a photocopy of my annulment.

It is my contention that your continued processing of this data is contrary to rights afforded me under the Data Protection Act 1998 S.10, and S.12

My requirements for resolution are that within 7 days of the date this letter is deemed served, that this record is removed from your credit file. Take note that a mere note of correction will not suffice. I am fully aware that you are entitled to 21 days but feel that the inaccuracies in your file as highlighted above, and in the light of the overwhelming evidence in front of you, i.e. my annulment, that no further investigation on your part is necessary.

I hope that this letter clarifies my position on this matter, and would ask you to bear in mind if I do not find your response agreeable, then I will have no alternative but to escalate my complaint, possibly to litigation

I think i've covered all i need to

 

regards

vselym

[car2403]

Looks good, but I think you need to pad it out a little more by using the letter to explain why you want this removed, then including a Notice as an enclosure outlining your requirements, referring to your letter for the reasons then outlining the damage caused.

 

For an example, look at the Surleybonds template, here;

 

http://www.consumeractiongroup.co.uk/forum/legalities/24013-defaults-proposed-method-removal.html

 

The rest looks fine, but I don't think you'll get a reply within 7 days...

[tomterm8]

Have read Data Protection Act as many times as i can without going doolally !

Question is where do CRA's obtain the right to record Bankruptcies, IVA's and CCJ's ?

As far as i can see i've never signed any t&c's which allow them to process my information that is in the public domain ? and i certainly never signed an agreement with them ?

It may have been said before, so apologies and a signpost to thread would be appreciated thanks

 

vselym

 

OK. The data Protection act is available Results within legislation - Statute Law Database

 

s4 specifies how data is to be used according to the principals

 

4.

 

The data protection principles.

 

— (1) References in this Act to the data protection principles are to the principles set out in Part I of Schedule 1.

 

 

(2) Those principles are to be interpreted in accordance with Part II of Schedule 1.

 

 

(3) Schedule 2 (which applies to all personal data) and Schedule 3 (which applies only to sensitive personal data) set out conditions applying for the purposes of the first principle; and Schedule 4 sets out cases in which the eighth principle does not apply.

 

 

(4) Subject to section 27(1), it shall be the duty of a data controller to comply with the data protection principles in relation to all personal data with respect to which he is the data controller.

 

So we go to the Data protection principals which are in part I schedule 1

 

 

The principles

[/url]

 

1.

Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless—

(a)

 

at least one of the conditions in Schedule 2 is met, and

 

 

(b)

 

in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met.

 

 

 

 

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.

 

 

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.

 

 

6. Personal data shall be processed in accordance with the rights of data subjects under this Act.

 

 

7. Appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.

 

 

8. Personal data shall not be transferred to a country or territory outside the European Economic Area unless that country or territory ensures an adequate level of protection for the rights and freedoms of data subjects in relation to the processing of personal data.

So we go to the conditions in schedule 2:

 

Conditions relevant for purposes of the first principle: processing of any personal data

 

 

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.

 

 

5. The processing is necessary—

 

(a)

 

for the administration of justice,

 

 

[

F1

(aa)

 

for the exercise of any functions of either House of Parliament,]

 

 

(b)

 

for the exercise of any functions conferred on any person by or under any enactment,

 

 

©

 

for the exercise of any functions of the Crown, a Minister of the Crown or a government department, or

 

 

(d)

 

for the exercise of any other functions of a public nature exercised in the public interest by any person.

 

 

 

6. — (1) The processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject.

 

 

(2) The [

F2

Secretary of State] may by order specify particular circumstances in which this condition is, or is not, to be taken to be satisfied.

 

processing can be carried out if ANY of these requirements are met. So, lets remove principals that are obviously not relevant. 1 and 2 are not relevant. 3 is not relevant. 4 is not relevant. Neither is 5.

 

Since a Credit reference agency records data, and makes this data available to people who are maintaining or considering prospective contracts, 6 is very relevant. All the court cases i've seen so far, although there haven't been many, the court has found that the CRA is able to process data under paragraph 6(1)

 

Hope this helps.

[vselym]

Thanks car2403

was gonna pad it slightly..........honest injun !

 

Forgot to mention aswell that part of the annulment is to "dismiss" the original bankruptcy petition. Surely if a judge has done this once there is no reason they wouldn't take the same approach if i ended up in court over this ? The bankruptcy effectively never happened ! Another point is having searched the IS (Insolvency Service) website, the term "satisfied" doesn't appear anywhere, you just don't satisfy a bankruptcy, you're either annulled or discharged

 

thanks for input

 

regards

vselym

[vselym]

Hi tomterm8,

thanks for reply

 

 

 

6. — (1) The processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject.

 

ok, i agree that this is the only part they can rely on, but is it not the case that signing tandc's is a tri-agreement ? Me, the institution who's tandc's i sign and the cra piggybacking ? Most tandc's go out of their way to point out they will only pass your info within their group, eg Lloyds don't want to tell Barclays what a good customer you are. The cra may have an agreement/business relationship with Barclays, but my permission is with Lloyds is it not ?

 

 

Regards

vselym

[tomterm8]

You don't need someones consent to record information under 6(1).

 

You don't even need a commercial relationship between the data subject and data controller.

 

they merely need a legitimate reason to process the data.

[vselym]

2nd draft of letter to Experian

any thoughts gratefully received

 

Experian Ltd

PO Box 8000

Nottingham

NG80 7WF

26th November 2007

Our Ref :

FAO Data Controller

Letter 3

Dear Sir/Madam

Upon conducting an audit of my personal financial affairs, I was dismayed to find on my Experian credit file, reference number XXXXXXXX, under entry J1, a reference to a “satisfied” bankruptcy, which I can only assume refers to my “annulled bankruptcy”.

As a data controller you are obliged to adhere to the Data Protection Act 1998, and I would draw your attention to the following,

SCHEDULE 1 The data protection principles

Part I The principles

1 Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless—

(a) at least one of the conditions in Schedule 2 is met, and

(b) in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met.

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.

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.

6 Personal data shall be processed in accordance with the rights of data subjects under this Act.

7 Appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.

8 Personal data shall not be transferred to a country or territory outside the European Economic Area unless that country or territory ensures an adequate level of protection for the rights and freedoms of data subjects in relation to the processing of personal data

My particular concern is the duties by which you are bound regarding part 4 of Schedule I

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

I have enclosed in this letter a copy of my “Order of Annulment Under Section 282 of the Insolvency Act 1986”

You will no doubt see that your file “J1” is neither “accurate” nor “up to date”. There is no such term as “satisfied” applied to bankruptcy orders. However, “an annulment has the effect in law that the bankruptcy order was never made. You will revert to your pre-bankruptcy status.” Interestingly you claim that your “source” of the “satisfied” data is the London Gazette. As I the annulled bankrupt did not require advertisement of the order, I would like you to disclose which publication you were referring to. If you were referring to the Insolvency Service’s Individual Insolvency Register, I would be very surprised because, “if a bankruptcy order is annulled it will be removed from the register immediately.” It was, I checked. With reference to your claim that the Insolvency Service would update you, Experian, if and when my bankruptcy was annulled or discharged, it is with deep regret that I must inform you that the Insolvency Service says of this, “Credit Reference Agencies – the official receiver does not send any form of notice to credit reference agencies.” For clarification or further reading, the Insolvency Service can be contacted on 0845 602 9848, or on-line at www.insolvency.gov.uk

Section 10 of the Data Protection Act awards the 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 Experian has not applied to HM Secretary of State for an order allowing you an exclusion, which leaves you with the only remaining possibility of requesting an exemption under paragraph (a).

 

I have notated the following points so as to clarify my position with you, Experian

 

1. The data subject has given his consent to the processing.

 

I have never consented to your processing of this data

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), nor do I intend entering into any contract with you

 

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.

 

Experian are not 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 annulment could be described as anything like a matter of life or death.

 

So, it is clear to see that there is neither statutory provision nor exemption under 10.2 permitting Experian to continue processing this data.

As such, and as per the statutory notice enclosed, I require you to amend my file by removing any reference to my bankruptcy, please note a mere note of correction will not suffice. I am fully aware that by statute you are allowed 21 days to comply or reply stating your reasons for non-compliance.

I trust that I have made my position clear, and hope that this matter will come to a speedy conclusion. Please be aware that should you fail to comply with your statutory obligations under this notice, I will not hesitate to escalate this matter further.

Yours faithfully

Name

Enc.

Statutory Notice pursuant to Section 10

 

of The Data Protection Act 1998.

 

 

Data Subject Notice

 

 

To: The Data Controller

Experian Ltd

Talbot House

Talbot Street

Nottingham

NG80 1TH

 

 

Data Subject: Me

 

Address: Me’s house

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 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 Annulled Bankruptcy XX of XXXX in the XXXXXX County Court

 

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

 

 

 

Dated

 

 

Regards

 

vselym

[car2403]

Much better vselym. I think this will kick off the dispute process nicely and they don't seem to have a leg to stand on if they can't justify continued processing, given what you've said, and can't find anyone to "dispute" the data with. (the CRA's are third parties)

 

I still don't think this will be easy, but you/they may prove me wrong...

 

Good luck - keep us informed.

[vselym]

Thanks car

 

but 06.44am, note to self req'd methinks !

 

regards

 

vselym

[car2403]

Oh, I've had earlier!

[lookinforinfo]

The London Gazette is a specialised paper that includes bank branches in its

circulation so that each branch can check to see if any of its customers have

filed for bankruptcy etc.

I am surprised that its existence could not be found as it is easily located

by using the search engines and there are three websites for it.

 

One of the topics they report on are personal bankruptcies. It would be only

fair therefore that as they would have declared your bankruptcy at the time,

that they published the annulment to allow those who kept a record of your

bankruptcy to amend their data.

 

I can understand that you are upset that a bankruptcy in your name has been

broadcast. But part of the way to make amends, is to broadcast the fact

that the bankruptcy has been annulled, in the same way as newspapers

print apologies in their papers when they get stories wrong. There may be

companies who have you registered as being bankrupt and it is only articles

in the London Gazette and corrective data by the CRAS that can lead to

those companies amending their records.

I admit that Experian could have made the situation clearer with a better choice of wording. However, it may be necessary that the amendment to your

credit file remains in place for a time to allow some companies who have not yet brought their records up to date.

Had you been declared bankrupt, then legally both the London Gazette and the CRAs can report that fact for six years-and they do not need your permission. It would perhaps be inequitable then that they

did not record that the bankruptcy was an error and to set the record straight.

 

You don't say if you have already attempted to get the CRAs to amend your

file, but I would have thought that rather than simply removing the data, it

may be better to word the information in such a way as to indicate that you

are, and always were, financially sound and had never gone bankrupt. At least in the short term perhaps as proof that you are solvent.

[vselym]

Hi lookinforinfo

 

thanks for replying

 

I think i've confused you with the London Gazette part of the letter. I can find their search engines without problem. The issue is that Experian claim that was their source for their data records regarding my annulled bankruptcy. The Insolvency Service do not advertise annulments, that is down to the individual, ie me. I didn't choose to advertise mu annulment, and as such no record exists with the Gazette ! So Experian for want of a better expression, are telling porky pies ! The other part of an annulment, is to "dismiss" the original bankruptcy order, and return the individual to "pre bankrupt status"

The 4th principle of the DPA '98 explains a data controllers duty to keep any data correct and up to date ! Not my fault if they can't keep up, remove it or go to court, simple as !

 

regards

 

vselym

[lookinforinfo]

If you look at the Personal Insolvency section of the Gazette, you will find

a subsection called "Orders Annulling, Revoking or Rescinding Orders" which

is where probably the CRA got their info.

If the CRA was still showing that you you were declared bankrupt then they

could be accused of failing to keep accurate or up to date records. As it stands, they appear to be up to date, though you could certainly question the accuracy of their interpretation of the annulment.

 

It is enshrined in Law that Court Orders are processed for six years and so

it may be difficult to get the CRA to remove this entry from your file. Going

to Court would be a waste of your time and money. So though it may go

against the grain, it may be better to approach the CRA in a more conciliatory manner and perhaps explain the embarrassment the entry causes

means that you would like it removed sooner rather than later. It is

obviously better than having a bankruptcy order listed on your file, but I

appreciate that potential lenders may feel on seeing it [even if the terminology is amended] that there is no smoke without fire and either refuse

your request, or impose harsher terms.

[car2403]

Had you been declared bankrupt, then legally both the London Gazette and the CRAs can report that fact for six years-and they do not need your permission.

 

It is enshrined in Law that Court Orders are processed for six years and so it may be difficult to get the CRA to remove this entry from your file. Going

to Court would be a waste of your time and money.

 

Is there legal authority for this, lookinforinfo?

[lookinforinfo]

Court Orders remain on your file for a period of 6 years [sorry I am at work at the moment so cannot lay my hands on the relevant Law] and it is from there

that the finance industry and CRAs decided upon 6 years for their missed payments etc which have no legal authority.

 

Reading the first quote above again Car2403, I realise that it is not quite

phrased correctly. The London Gazette records the data as it happens, but doesn't continue to process the data each edition for 6 years, though it will

show up in their archives.

 

The CRAs can report bankruptcies CCJs and any other Orders under Seal for 6 years.

[vselym]

Hi

 

I agree that the cra's can process bankruptcies, but not once annulled. An annullment is in effect a reversal of time, it means that the bankruptcy never was. If asked on an application form, "have you ever been declared bankrupt ?", i can legally answer "NO"

It is completely different to a discharge.

I have had many discussions with the IS about this, as I wanted to be sure before I took the cra's on

 

regards

 

vselym

[car2403]

[sorry I am at work at the moment so cannot lay my hands on the relevant Law]

 

I'd like to see that, lookinforinfo, as I have claims based on there being no legal authority to process without consent.

[lookinforinfo]

Where the Courts have handed down sealed Orders, then there is no argument, the details are held on your file for 6 years.

 

However anything other than legal Orders comes under different rulings depending on the terms of the contract and whether the contract is still in force.

[car2403]

Where the Courts have handed down sealed Orders, then there is no argument, the details are held on your file for 6 years.

 

However anything other than legal Orders comes under different rulings depending on the terms of the contract and whether the contract is still in force.

 

I may have misread your earlier posts, but thanks for clarifying anyway.

[vselym]

Update

Final phonecall with IS confirms no record should show on the cra's.

So letter sent special delivery 04/12/07, 21 days and counting

 

regards

vselym

[vselym]

Evening

 

letter received from Experian today, file will be deleted in the next 7 days !

They also advise me to contact the other cra's and give me their address' , how considerate

My SAR is also being collated and should be with me shortly, we'll see

 

regards

 

vselym