Bank in default of s77 request, should they remove data from credit file?

[beavis123]

Hi, not sure if this is the right forum but my bank (Lloyds) have been in default of my section 77 CCA request since October 2008, until then they were adding late payment records to my credit file as the repayments were being made under an arrangement. Since they have been in default of my CCA request and after i sent them a data subject notice under section 10 of the Data Protection Act, they have stopped providing the DCA's with any info at all.

While i understand is what they should have done, could anyone tell me if i am within my rights to ask them to remove all history of the account from my credit file? It occurs to me that by being in default of my CCA request means that they have no credit agreement, neither can they prove that one ever existed, so they never had any right to share my data because my permission for them to do so is based upon the existance of a credit agreement. Any guidance would be appreciated.

[Jamesx81x]

You will have to take them to court to prove that no agreement exists. Just because they dont send you an agreement does not mean they dont have one.

 

Although if you are going down no agreement exists how would you explain the payments you have made to the bank? This is what the bank and judge will say!

[beavis123]

Taking them to court would probably spur a detailed search which might reveal the agreement so not considering that route at all.

[bobbyh99]

The reason they haven't sent you a CCA is because they don't have one. The certainly won't have a copy of the original, which I believe they need to enforce through court!!

 

I am sure someone will correct me if I am wrong!

[Jamesx81x]

True. No agreement in court usually will see the agreement been made un-enforceable but as i said before the judge will want to know why you have been making payments to an agreement that allegedly does not exist. This would be enough for the judge to rule there must have been an agreement or why would you pay?

 

Do you get where i am coming from? It can be really tricky and you just have to be careful you dont shoot yourself in the foot.

[beavis123]

Despite being in default, Lloyds are continuing to add late payments to my credit file, what can i do about this? I issued them witha notice under section 10 of the DPA but that was ignored, i rang the ICO but was told that they wouldn't uphold a complaint about this based on the absence of a credit agreement. Obviously i'm not considering the legal route but i can't see any other way to stop them from adding late payments to my credit file. Any thoughts on this...?

[a2012]

Following your logic I can approach someone and plead saying I need cash for this and that, my house is been burned down, etc ask them to transfer money to my account at least once then claim in court that it was a first of 100 monthly installement of the x loan which is backed by both verbal and written agreement only I cant locate the written one

 

Why you paid to the bank. You paid to pay the loan and then bank agreed to omit the rest of the loan and to signify that they destroyed the written agreement. Judge to the bank have you a written agreement in place? Harsh reality of common law.

[beavis123]

That has no relevence to my question whatsoever, i asked whether they could still share my data whilst being in default of a s77 request and if not, what could i do about it?

[Jamesx81x]

You can request them to stop processing your data with regards to passing your data on etc but with regards to the default and CRA's they have a legal obligation to keep them informed and until it is proven that there is no agreement willl cary on doing so.

[beavis123]

I'm sure they don't have a legal obligation to provide the CRA's with information. There is nothing in law that requires a creditor to provide information to a CRA. I know they will carry on but i need to know how to stop them without seeking a court order.

[Jamesx81x]

I think you will find they do. You have asked for information and people are trying to tell you.

[beavis123]

In what area of law or legislation are creditors legally obliged to provide CRA's with information?

[Jamesx81x]

Try the section on your credit agreement that states we may pass the conduct of your account on to credit reference agencies which when you sign becomes a legally binding document.

 

Also try section 34 of the Information Commisioners Office guidance on defaults that states:

 

When a default occurs in line with the criteria in this guidance, and the lender has given the customer 28 days notice of the intention to file a default, then subject to paragraph 37, the lender may supply this information to a credit reference agency despite no advance warning when the account was opened.

 

You mention possible court action to enforce your S77 request. The judge is going to ask on what grounds you are seeking this. When you state the bank have no agreement there is 2 outcomes. The bank produce the agreement or they say you have paid payments which is just as good as them having an agreement.

 

You have admitted to making payments, the bank will have records yet you are trying to state no agreement has ever existed.

[bobbyh99]

Try the section on your credit agreement that states we may pass the conduct of your account on to credit reference agencies which when you sign becomes a legally binding document.

 

Also try section 34 of the Information Commisioners Office guidance on defaults that states:

 

When a default occurs in line with the criteria in this guidance, and the lender has given the customer 28 days notice of the intention to file a default, then subject to paragraph 37, the lender may supply this information to a credit reference agency despite no advance warning when the account was opened.

 

You mention possible court action to enforce your S77 request. The judge is going to ask on what grounds you are seeking this. When you state the bank have no agreement there is 2 outcomes. The bank produce the agreement or they say you have paid payments which is just as good as them having an agreement.

 

You have admitted to making payments, the bank will have records yet you are trying to state no agreement has ever existed.

 

Devils in the detail!! There is no law which say the lender has to inform the CRA!!!

[beavis123]

Exactly! there is no legal obligation for creditors to provide the CRA's with information.

Edited March 3, 2009 by beavis123

[beavis123]

You mention possible court action to enforce your S77 request.

 

No i didn't, i asked whether they could still share my data whilst being in default of a s77 request and if not, what could i do about it?

[Jamesx81x]

And as i said before you can stop them sharing your information with 3rd parties etc from now on ie, DCA's but until you prove that no agreement exists then they dont have to remove any information as why should they if you have admitted there is an account?

 

You admitted an arrangment to pay was in place so if they have been adding these payments to your credit file then they are correct and have done nothing wrong.

[beavis123]

I'm not denying there is an account or whether an arrangement to pay is in place, neither am i asking them to remove any information prior to being in default of my s77 request. I simply asked whether they could still share my data whilst being in default of a s77 request and if not, what could i do about it?

[Jamesx81x]

You did in your first post you asked if you were in your rights to ask them to remove all history of the account from your credit file which i have answered.

 

Then you started to go on about the fact that as they could not produce an agreement they never had any right to process your info. All of what i answered is what you originally said.

 

Only thing they cannot do in default of a S77 is enforce any debt until they produce the original. To stop them processing your data you need to issue a notice under section 10 of the data protection act -

 

Right to prevent processing likely to cause substantial damage or distress

 

But as it says you have to prove what damage or distress the processing of this information will cause you..

 

All information already on your file will stay there unless added incorrectly

[beavis123]

Yes, i asked if i was within my rights, you answered by trying to tell me they had a legal obligation to provide CRA's with information which is rubbish. There is no legal requirement for creditors to supply the CRA's with information although i am aware of their rights to do so in terms of a credit agreement.

 

 

I didnt "go on about the fact" that as they could not produce an agreement they never had any right to process my info, i am well aware that they are within their rights (not legally obliged) to process my data in relation to my account, although not while in default of a s77 request.

 

I have already issued them with a data subject notice under s10 of the Data Protection Act.

 

You also claim that i have to prove what damage or distress the processing of this information will cause me. This is rubbish. I have today spoken to someone at the the OFT and have been properly advised that creditors can take no action against disputed sums including the sharing of personal data. Any such action would br contrary to guidelines set out by the OFT.

 

What you mean by your last comment i'm not sure, but of course it will stay there unless properly challenged.

[Jamesx81x]

Yes of course it is rubbish its part of the data protection act bother your arse to look it up you will find it on the Information Commissioners website so i suppose they are speaking rubbish too.

[incipience]

Beavis. I see what you are trying to achieve here, but it does appear that you are trying to put hte cart before the horse.

 

The lack of a credit agreement at this stage really means not a lot, it is when the lender tries to enforce the debt via the courts, this is where they will come up with some serious issues, no agreement, no debt enforceable..

 

Lenders have are not under any law to disclose data to CRA's it is purely voluntary. However should lenders choose to share the data then they are under legal obligation to ensure the data is true and accurate.

 

Dont worry about the default at the moment, there aint no credit about anyway.

 

Take your time and think about what you are arguing, since the account is in default the lender will no doubt be passing it over to a DCA for enforcement, when this happens, ask the DCA for a copy of the agreement, and when they cant produce, then the debt does not exist.

 

Should they take you to court, you may then be able to argue the enforceability of the debt, and therefore could possible request that court to remove the default.

 

Better to bring the mountain to mohammed than mohammed going to the mountain.

 

Best Of Luck to you.

[beavis123]

There is nothing within the CCA, the ICO's website or anywhere else in law that obliges creditors to provide CRA's with information, neither is there any requirement that that i have to prove what damage or distress the processing of this information will cause me if i want unjust or incorrectly provided data to be removed from my credit file.

[beavis123]

Beavis. I see what you are trying to achieve here, but it does appear that you are trying to put hte cart before the horse.

 

The lack of a credit agreement at this stage really means not a lot, it is when the lender tries to enforce the debt via the courts, this is where they will come up with some serious issues, no agreement, no debt enforceable..

 

Lenders have are not under any law to disclose data to CRA's it is purely voluntary. However should lenders choose to share the data then they are under legal obligation to ensure the data is true and accurate.

 

Dont worry about the default at the moment, there aint no credit about anyway.

 

Take your time and think about what you are arguing, since the account is in default the lender will no doubt be passing it over to a DCA for enforcement, when this happens, ask the DCA for a copy of the agreement, and when they cant produce, then the debt does not exist.

 

Should they take you to court, you may then be able to argue the enforceability of the debt, and therefore could possible request that court to remove the default.

 

Better to bring the mountain to mohammed than mohammed going to the mountain.

 

Best Of Luck to you.

 

Thank you for the advice, unfortunatly the credit agreement arrived yesterday and appears to be in order. I have written to complain though as Lloyds have continued to add interest and provide the CRA's with data relating to the account during the default period (which has been since last December).

 

I'm not sure if i have a leg to stand on but i've told them that until they amend the situation, (ie. remove interest added during the default and remove the data from my credit file added during the default) and explain their non compliance in terms of the CCA, that i won't be resuming repayments.

 

Will post back with their response... could be interesting

[pirateuk]

True. No agreement in court usually will see the agreement been made un-enforceable but as i said before the judge will want to know why you have been making payments to an agreement that allegedly does not exist. This would be enough for the judge to rule there must have been an agreement or why would you pay?

 

Do you get where i am coming from? It can be really tricky and you just have to be careful you dont shoot yourself in the foot.

 

 

I think you could argue that you believed you have made all payments required as defined in the agreement and you believe the current balance is nil, therefore Lloyds would have to provide a copy of the agreement if they wanted to prove a debt still exists.

 

In saying the above, i dont think this is what this site represents, i would encourage everyone to pay their debt where they can, and make arrangements when times fall hard.