2 defaults Egg and Vodaphone - Default hell!!

[Sarrahk]

OK i am probably being a bit thick but i am a bit confused by all of this... Is the first thing i do write to the credit agencies and tell them i do not want to be included in the automated process??? If i do this so what exactly does that mean? Does it remove the defaults or does it simply prevent new potential etc from finding out about them??

 

Secondly would the contractual letter you sent to Orange help in my case?? In my case Vodaphone said that even though i settled tehir debt in full they are still not removing the default by virtue of the fact that they sent the debt to collection agency and i only paid at that point and therefore they are leaving the default on for 6 years??

 

Sorry if i am being really stupid..

[SurlyBonds]

Right, let's try and get this sorted once and for all.

 

Do I understand that you only have ONE default showing on your credit record and that was placed by Vodafone who are refusing to remove it, despite the alledged debt being "settled" and the contract being cancelled and no longer in effect?

 

If so, then I would suggest the following.

a) Send a Schedule 10/12 Notice - example below - print this on a separate piece of paper.

b) include a cover letter - example below

 

Send it all via Recorded Delivery and/or fax it to their Data Controller (keep the confirmation printout - the 'journal report'). Then stand back and watch them squirm...

 

I used this against Orange and it worked straight away:

 

“

 

Statutory Notice pursuant to Sections 10 and 12 of

 

The Data Protection Act 1998.

 

 

Re: account nos. [include account/reference no]

Account holder: [your title and name]

Address: [your address]

Whereas I have been customer of Vodafone since [insert date that account was opened] and whereas I consented in my contract with you to the disclosure by you of certain data to third parties, 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 seven 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. Take notice that you must also remove my subject data from all automated processes with immediate effect, as per my rights under Section 12 (1).

This Notice is served 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 the fourth, first and sixth principles of The Data Protection Act 1998 to do so would be unwarranted.

Signed,

[sign it]

 

[Title and full name]

Dated this [e.g. first, second, twenty-first, etc] day of [month], in the year two thousand and six.”

Basically this is a formal notice that, according to the provisions of the Data Protection Act, you consider their continued processing of this data to be detrimental to your status. It also orders them to 'opt-out' your data from all automated processes that involve decision making. The Data Controller then has 21 days in which to confirm that they will comply or give valid reasons why they consider that continued processing is necessary.

 

However, if you include a letter along the following lines, you find that they STFU and JFDI

 

Suggested wording for cover letter:

 

"[address it to their Data Controller]

[make sure it's dated - vital!!!]

Dear Sirs,

Re: Former Vodafone account Number [xxxxxxxxxxxxxxxx]

I understand that you have placed a default marker on my credit files in relation to the above closed account.

I am contesting this continued processing of my data as 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.

As you are aware, I am afforded principled rights under 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, you are retaining and processing data (whether or not this is a simple renewal process of the default flag, daily or other timed factor) after the cancellation of the contract. As that contract is no longer in situ, then my written permission has also ceased from the date of cancellation.

Principle 2 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...purposes" as in that specified within the contract, and no more. I also emphasise the term "shall not be further processed".

The contract, that I signed, only gave you permission to process data during the term of that contract. It neither included any other permission, nor did it imply that your perceived 'rights' to process my data would be in perpetuity. There was certainly no clause contained within the contract that stated that you 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 you to continue disclosing my subject data to third parties after the end of the contract. You should be fully aware that any non-agreed disclosure of personal data to third parties, without written permission is a criminal offence under the Act. Section 35 only allows exemption to this clause, if disclosure is necessary in the detection of crime, and disclosure is so ordered by a Court. I do not believe that you have any such statutory obligation especially in such a case as this; alleged non-payment in a civil matter.

However, if I am mistaken, and the contract did specify unlimited time extensions, then you must provide me with a copy of those terms indicating where I have signed an agreement 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 request, or give written notice stating your reasons and why you consider the notice unjustified. Any failure on your part to adhere to these timescales will automatically result in your non-compliance with the statutory procedure. In that case, you will be expected to unconditionally comply with my Statutory Notice or I shall refer the matter to the Courts to ask for an Order to that effect. Should it be necessary to refer the matter to the Courts, then I shall also apply for Court fees and costs against Vodafone.

I trust that I have made my position clear, and that you will make a serious effort to understand your legal obligations and effect the changes requested. Should you be any doubt as to your obligations as a Data Controller, then I would advise that you seek legal advice.

 

I look forward to receiving your confirmation that my date file has been altered to remove all reference to my former account with Vodafone, within the timescales indicated herein.

 

Yours, etc.

 

They now have 21 days to reply and give some pretty damn good reasons why they insist on continuing to hold the data.

 

 

Do remember that just because a data file stays the same each month, it is still being 'processed' - it's just that computers make a "no change in status" type decision on the record. By Law, this is still an automated decision process.

 

The killer part for them will be to provide a copy of your agreement to allow disclosure "in perpetuity" - no contract has this in it and, what's more, they couldn't include such a clause anyway, as it would deemed an unfair term:

UTCC Regs, Schedule 2, Examples of unfairs terms include:

(j) enabling the seller or supplier to alter the terms of the contract unilaterally without a valid reason which is specified in the contract;

 

In these cases, they are in effect extending the data disclosure element of the contract past the end date. they cannot argue that this is in the public interest as they have marked the entry as satisfied. Either they are satisfied, or they are not, they can't have it both ways!!

 

 

Go for it girl, and good luck...not that you'll need it... it's pretty well cut 'n' dried on these situations.

[Neo]

Thank you... this is excellent and a lot clearer.

 

Last question (it's good for bumpign up the post too) - could this be, in your opinion, applied to any default - as long as the contract that was signed agrees?

 

ie a default which was applied within the contract as opposed to after the contract was cancelled?

[Sarrahk]

great thank you! That is very helpful.. i will get that done asap!

[Sarrahk]

Do i just send the notice and letter to Vodaphone or to Experian etc as well??

[SurlyBonds]

I would (personally) cc: it to Experian, Equifax and MyCallCredit - I didn't do this for mine at the time, but there's no harm in doing so. Okay, it's three times the postage, but if it went to Court, you could at least show that all parties to the data supply, storage and processing were aware of your notice.

 

The credit reference agencies are also ruled by the DPA, so you could even serve them with the same. They always argue that they only take instructions from "their clients" i.e. the greedy bar stewards (banks) who pay their subscription services. However, as a Data Controller that is also automatically processing your data, you are equally entitled to issue a stop and desist notice to them. That's what I did for all my data entries.

 

Hell, why not make it massive party and issue the same letters and Notices to all four of these parasitic organisations! Let's party!!

 

Yes, you guessed it - I am actually VERY keen to start a campaign to get the whole of the UK to opt out of automatic processing. That way, it would tie these Muppets up with so much paperwork they wouldn't be able to move for A4, and their whole business model would collapse, as ALL future ref checks would have to be done manually.

 

They have got away with this for far too long, and it's about time that we started fighting back and making their lives difficult.

 

One thing that REALLY annoys me is that if you visit the websites for the credit ref agencies, they all (without exception) have a "Your Rights" section.

 

However, NONE OF THEM mention Section 10 and 12 of the Act and your right to opt out. Just how convenient is that? I believe that this is unethical and a blatant breach of the DPA which states that all Data Controllers should issue a full summary of a data subject's rights.

 

By the way, another little known fact that could be used to screw up their business model isthis:

 

Under the DPA, you are entitled to insist that the Data Controller writes to you at reasonable intervals (say, 3 months) to confirm whether or not they still retain a data file on you. They CANNOT charge for this, as you are not actually requesting a copy of the specific data entries, you are merely checking whether they still retain information about you.

 

They also have to give a full summary as to what type of data they hold and the reasons as to why they hold it. They also need to list who is supplying that data (including names and addresses) and their reasons for suppling the agencies with such data.

 

This is a check and balance in the Act to ensure that old redundant data is discarded and anything that is no longer relevant gets removed and the file closed. There are some exceptions, but these are mainly for Health records, historial research, etc.

 

What people need to realise is that there is, in fact, no legislation which created the credit reference agencies - they are private organisations, that somehow managed to bamboozle everyone (and their monkey) into believing that they were responsible companies to look after the nation's credit data. As they say..."Information is power"... in this case, that is all it is.

 

So, get your typewriters out folks... and request your quarterly update... FREE OF CHARGE.

[ppauls150]

Sarrah i am in exactely the same boat as you though i had two contracts with Vodafone and did exactely the same and asked them to remove the defaults as the accounts where settled over a year ago in full but all they did was put that it was satisfied on my record and these two defaults is causing me soo much headache it is untrue. I reckon i wouldnt have a problem with these two removed. I asked them to remove them and they told me to get lost. This information looks supurb. If i dont get a good credit rating asap for me and my girlfriend which allows us to try and get our loans on lower APRs than what we are paying at the minute and cut our bills down drastically we might end up splitting up after 9 years together. Dont these companies realise how much heartache they cause. Yes we put ourselves in these positions but it is even more once these accounts are settled to cause us more headache for the next 6 years of our lifes and put extra strain on these problems.

[Tinkerbelle]

I would (personally) cc: it to Experian, Equifax and MyCallCredit - I didn't do this for mine at the time, but there's no harm in doing so. Okay, it's three times the postage, but if it went to Court, you could at least show that all parties to the data supply, storage and processing were aware of your notice.

 

The credit reference agencies are also ruled by the Data Protection Act, so you could even serve them with the same. They always argue that they only take instructions from "their clients" i.e. the greedy bar stewards (banks) who pay their subscription services. However, as a Data Controller that is also automatically processing your data, you are equally entitled to issue a stop and desist notice to them. That's what I did for all my data entries.

 

Hell, why not make it massive party and issue the same letters and Notices to all four of these parasitic organisations! Let's party!!

 

Yes, you guessed it - I am actually VERY keen to start a campaign to get the whole of the UK to opt out of automatic processing. That way, it would tie these Muppets up with so much paperwork they wouldn't be able to move for A4, and their whole business model would collapse, as ALL future ref checks would have to be done manually.

 

They have got away with this for far too long, and it's about time that we started fighting back and making their lives difficult.

 

One thing that REALLY annoys me is that if you visit the websites for the credit ref agencies, they all (without exception) have a "Your Rights" section.

 

However, NONE OF THEM mention Section 10 and 12 of the Act and your right to opt out. Just how convenient is that? I believe that this is unethical and a blatant breach of the Data Protection Act which states that all Data Controllers should issue a full summary of a data subject's rights.

 

By the way, another little known fact that could be used to screw up their business model isthis:

 

Under the DPA, you are entitled to insist that the Data Controller writes to you at reasonable intervals (say, 3 months) to confirm whether or not they still retain a data file on you. They CANNOT charge for this, as you are not actually requesting a copy of the specific data entries, you are merely checking whether they still retain information about you.

 

They also have to give a full summary as to what type of data they hold and the reasons as to why they hold it. They also need to list who is supplying that data (including names and addresses) and their reasons for suppling the agencies with such data.

 

This is a check and balance in the Act to ensure that old redundant data is discarded and anything that is no longer relevant gets removed and the file closed. There are some exceptions, but these are mainly for Health records, historial research, etc.

 

What people need to realise is that there is, in fact, no legislation which created the credit reference agencies - they are private organisations, that somehow managed to bamboozle everyone (and their monkey) into believing that they were responsible companies to look after the nation's credit data. As they say..."Information is power"... in this case, that is all it is.

 

So, get your typewriters out folks... and request your quarterly update... FREE OF CHARGE.

 

xr537 for Prime Minister!!

 

Boy am I glad I discovered this thread!!

[Sarrahk]

hey thanks for all of this, i was so excited by it all i immediately sent my notice and letter off to Vodaphone today. I intend to send copies of this to Equifax etc.

 

Should i still send a letter to equifax about "opting out" and does that simply mean its only future info they cannot automatically store about me, what about the info (defaults and late payment info) they already have stored??

[Sarrahk]

hey thanks for all of this, i was so excited by it all i immediately sent my notice and letter off to Vodaphone today. I intend to send copies of this to Equifax etc.

 

Should i still send a letter to equifax about "opting out" and does that simply mean its only future info they cannot automatically store about me, what about the info (defaults and late payment info) they already have stored??

[Sarrahk]

Sarrah i am in exactely the same boat as you though i had two contracts with Vodafone and did exactely the same and asked them to remove the defaults as the accounts where settled over a year ago in full but all they did was put that it was satisfied on my record and these two defaults is causing me soo much headache it is untrue. I reckon i wouldnt have a problem with these two removed. I asked them to remove them and they told me to get lost. This information looks supurb. If i dont get a good credit rating asap for me and my girlfriend which allows us to try and get our loans on lower APRs than what we are paying at the minute and cut our bills down drastically we might end up splitting up after 9 years together. Dont these companies realise how much heartache they cause. Yes we put ourselves in these positions but it is even more once these accounts are settled to cause us more headache for the next 6 years of our lifes and put extra strain on these problems.

 

I know how you feel its really stressful but you want to try and "take the bull by the horns" and tackle it. It is not worth letting it all affect your life.

 

I got into serious debt 2 years ago and am fighting my way through it now with help of CCCS and am getting back on track and now i just want to "clear up as i go" so i can get a mortgage in the future & a current account!

 

I intend to try every which way to rectify the defaults, especially on a settled account as i think its grossly unfair when you have paid up even if there was a bit of a delay (in my case i was especially furious as i had never actually just stopped paying them.. i had been paying installments to their credit agency before i settled up in full a couple months later! They are just doing same to me as they are with you and refusing to remove the default and only marking as "satisfied" by virtue of the fact that it went to their collection agency!) so all we can do is fight fight fight and yes petition the prime minister i am all for that!

[SurlyBonds]

xr537,

 

Great writing and great work.

 

One thing I note which could also work is, if I decide to take the plunge (I have the right to from the Data Protection Act) then if I decide to change my mind, I equally have the right to change back to automated decisions?

 

Sounds good if that is the case!

 

Neo,

 

You have the right to revert back (it's your personal data) - you just write and grant them conditional permission to temporarily start processing your data by automatic means until further notice. Just to keep yourself absolutely in control, state quite clearly that you "reserve the right to issue a new Statutory Notice (at [my] sole discretion) directing [them] to again remove your data from automated processing systems."

 

Use an expression like "my decision to temporarily allow automated process does not confer upon Experian/Equifax/MyCallCredit (or any of its directors, employees or agents) any express or implied rights, or permission, in respect of the future collation, storage and processing of my personal data." and something like

"I reserve the right to revoke this temporary permission at any time, and at my sole discretion, and will issue a further Statutory Notice to you if I wish to carry out such a revocation."

also...

"Please ensure that you understand that this permission is purely of a temporary nature, and confirm this understanding by return, including your adherance to my terms. Any failure to confirm this in writing within ten working days will automatically attach the presumption that you understand these conditions and will adhere to them."

 

Have fun!;-)

 

Oh, I would just love to be a fly on the wall when my own letters get opened in their offices... just to be able to photograph one face, just one face... please dear God, give me just one photo!:grin:

[Sarrahk]

hey thanks for all of this, i was so excited by it all i immediately sent my notice and letter off to Vodaphone today. I intend to send copies of this to Equifax etc.

 

Should i still send a letter to equifax about "opting out" and does that simply mean its only future info they cannot automatically store about me, what about the info (defaults and late payment info) they already have stored??

 

can you help me on this last query mr x ?

[SurlyBonds]

...snip

and does that simply mean its only future info they cannot automatically store about me, what about the info (defaults and late payment info) they already have stored??

 

No, ALL DATA, whether collated yesterday, today or tomorrow is your personal data, and all Data Controllers have a legal duty to ensure that it is collated, stored and processed within the confines of the Act. It doesn't matter whether it's stored on CD, disk, paper, card index file or Egyptian papyrus (okay..I'm kidding on that one), any information that can identify you as an individual or is a subset of data attached to a file that identifies you (i.e. a data entry within a data file) is YOUR subject data. It ain't theirs... it belongs to YOU, and they have a paramount duty to protect it and manage it lawfully.

 

The Act states quite clearly:

"personal data" means data which relate to a living individual who can be identified-

(a) from those data, or

(b) from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller,

and includes any expression of opinion about the individual and any indication of the intentions of the data controller or any other person in respect of the individual;

"processing", in relation to information or data, means obtaining, recording or holding the information or data or carrying out any operation or set of operations on the information or data, including-

(a) organisation, adaptation or alteration of the information or data,

(b) retrieval, consultation or use of the information or data,

© disclosure of the information or data by transmission, dissemination or otherwise making available, or

(d) alignment, combination, blocking, erasure or destruction of the information or data;

 

 

Note "those data and other information which is in the possession of, or is likely to come into the possession of, the data controller"

 

Anything as much as a name and address and telephone number is considered personal data - even your dentist should hold a Data Protection Licence if he stores your name and address on a PC.

 

The Act states that you can stop them utilising automated decision systems on your data for any purpose that materially affects you.

 

Re-read the Act:

Chapter 29 of the Data Protection Act 1998, Part II, Section 12 (1),

(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.

 

Also, remember that the DPA 1998 is a criminal act of Law, meaning that offences committed under it are a breach of the criminal code, and can result in criminal convictions for the directors and executives of these parasitic organisations.8-)

[ppauls150]

Sorry to go off the subject but looking at my credit file i have 25 entries say, and say 20 of them are settled, is it worth leaving these on my credit file or getting them removed. If you think that they should be left on there if they are settled is it worth trying to get removed the ones that show where missed payments where regestered for many months at a time or still leave them on?

cheers for the info.

P.S i also spoke to CRA and they said the ammount of searches also affect your credit rating, can these be removed also?

[ppauls150]

Also can you please tell me this. Vodafone may come back like they already did saying that my account was first set up from a previous supplier forget there name now but they closed down and Vodafone took them over so my first contract was with them and if i wish to get my contract then i should contact them. :S Where how can you if they no longer operate. Surely if this is the case aswell and i didnt sign a contract with Vodafone i am not bound by their terms and conditions am i? and if not then i gave them no right to issue the default against my name no? Sure this info will come in handy for other people reading aswell.

[Sarrahk]

this is same as me.. was yours singlepoint???

[ppauls150]

Yes thats it Singlepoint. Well as i said earlier i sent Data Protection Act 30th May no response as of yet. Should of done things by letter but didnt, i did things by phone over the last week to get something done with regards to the DPA. Got through to a girl call cathy from swansea who ran around for me to her line manager who inturn emailed the Data Controller Manager to contact me who did the same day. Assured me once again that data will be delivered recorded delivery within 48 hours. Well still nothing 3 days later. Rang up again spoke to Jodie from Hartlepool who werent as much helpful as Cathy. She told me there is no such person as the Data Controller Manager nor is there any dept that deals with getting sensitive info for me and also doesnt know how to contact someone who deals with the credit reference agencies. :S She had also spoken to her line manager who inturn spoke to his manager (Whatever LOL) and they dont know about any of these people or who they are or how to contact them.

 

Jodie " Why you want to speak to them?"

ME "To ask where my paperwork is and to make sure you send me the right info so i dont have to chase you up again"

Jodie "But your contract was with SinglePoint and not us so we wont have your contract SinglePoint will and they no long exsist" BIG SMILE

ME " So you reckon you wont be able to give me my contract then?"

Jodie " No your account is closed and i would be able to see if you had a contract with us from my screens" (Would they? Doubt it)

 

Told her to go through my notes where she stubbles across Cathys notes that her Line Manager has sent an email to the DCM to contact me that day. I said told you i had spoken to the DCM and there is such a person.

 

ME "Now can you email them again please and tell them to call me?"

Jodie "No sorry don't know how to get ahold of them as we don't know who this person is"

ME "Ok then seeing as you, your line manager and his manager don't know how to deal with contacting people, (Quickly gets in do you think you should ask your company to give you more training or a list of deptment contacts ) Can you please email the very nice Cathy who i dealt with several days ago to give me a call who will be able to help me asap."

Jodie "Yeap sure no problem"

ME "Thankyou very much for everything you have done for me today it was really helpful" Not in a scarcastic way or rude i might add.

 

That was roughly how the convo went for around 40mins. I know i should do things by letter but waiting 2 and a half months for info just gets even slower now with letters as noone seems to be pulling their fingers out.

 

Yes sorry for putting my problems in on your thread but thought that this convo might come in handy with regards to the account previously being with Singlepoint on arguing this with you. Or even helping on finding out on where you stand with reagards to the contract previously being with Singlepoint before Vodafone took over.

[Tinkerbelle]

Hope you don't mind us all jumping in on your thread Sarrahk

[SurlyBonds]

To answer some of the private messages and Neo's questions about the timing of the default (i.e. does it matter when it was added to the account) then I can only advise the following.

Firstly, let's get back down to basics about the Credit Reference Agencies (CRAs) and how they operate and the differences between statutory requirements (i.e. things that have to be done according to Law) and civil agreements (agreed between two or more parties by way of a contract).

There is NO legislation that created the credit reference agencies... just make sure that you understand that point as it is very important.

Credit referencing started in earnest in this country when Great Universal Stores started collating payment information on their home catalogue customers. Experian is actually a subsidiary company of GUS.

All the credit reference agencies - Experian, Equifax and MyCallCredit - are all non-Governmental companies - they have no legal statute to record data - they just do it, and have done so for so long that people actually believe that they are some sort of official Government agency. They are not - they are multi-million pound organisations that make shedloads of money playing with yours and mine data. Yep, unfair, but there you go... there's others too, e.g. the Motor Industries Insurance register, etc.

There is no such Law as the Credit Reference Agencies Act, or anthing remotely similar. They are simply in their current position because they had the technology first and went to all the banks and big corps and said "look we're pretty clever at tracking all this data, how about you lodge your data with us, and we'll let you also access it so you can vet current and future customers".

In the public interest, they also started logging public information such as bankruptcy orders, CCJs, etc - these are legal orders, signed by a judge, and issued by the Court. This is public information that gets reported in the London Gazette or can be looked up at County Courts.

Now, if you think about this, you must wonder just how do they get away with logging your data.

Judges can only issue bankruptcy Orders, CCJs, etc., as it is deemed in the public interest, but that is only after all parties have been invited to Court to give their side of things, and then one of these (hopefully) learned chaps (or chapesses) makes a decision one way or the other, or sometimes a little bit to both sides.

Judges are allowed to make these decisions because the Law says that they can (e.g. the old Insolvency Act - now the Enterprise Act, County Courts Act, etc.) - these are Acts of Parliament, voted into operation by the elected representatives of us all, namely our dear old MPs.

However, have you ever been invited to Court before a company registers a default on your credit record?? Have you been asked to give your side of things? Have you been allowed to explain anything like redundancy, illness, etc., as to why you were late with payments? Were you hell!!

So, how are they allowed to register your data?

Simple... you gave permission - not by any act of Law, but simply because you signed a contract (a civil agreement) which contained a clause which said something along the lines of:

"You agree to allow us to provide credit reference agencies with information relating to the running and conduct of your account".

There is no other way that they are allowed to store data on you, unless you give them signed permission to do so. If they do so, without your permission, they are committing a criminal offence. The penalties for breaking the Data Protection Act are severe and can result in very large fines and/or imprisonment of those responsible.

Some official agencies are allowed to store data on you without your express permission, e.g. DSS, Revenue and Customs, National Police system, Criminal Records Bureau, MI5, DVLA, the NHS, the Dept. for Education (on your kids) as the data collated is deemed in the national interest. However, you are still entitled to see that information upon a written DPA request.

Anyway, back to the CRA situation and the fact that you've just signed a contract allowing your bank to submit your payment history to the CRAs.

So, there you are, getting on in life, and each month your bank or credit card company sends a little file to the CRAs saying whether you paid that month or not.

If you did pay on time, you get an OK marker and your current status stays as a '0' or 'OK'. If you miss a payment, then a '1' is entered, as in 'Up to one payment late'. A '2' is entered if you are another payment late, etc., and so on.

If you pay back the 'missed' months and all the back payments, then your current status will go back to '0' BUT the history of the previous months will still show e.g. 0-3-2-1-0-0-0-0-0-0 (most recent month first)

These late payment markers stay on your file until the cycle shoves them along the queue and eventually they drop off.

But, if you don't keep to the Terms and Conditions and miss the critical number of payments, then the bank might issue you with a default notice and cancel the contract. The critical numbers of payments is rarely defined - contracts usually state something like "If you fail to keep up with your regular repayments, etc."

You should then get a letter (it's a legal requirement to issue one to you) along the lines of:

"We consider that are in breach of the Terms and Conditions of your loan and have taken the decision to terminate the contract with immediate effect."

They will almost certainly include something like:

"Your account has been placed in default, and we may register this information with Credit Reference Agencies."

Firstly, this sort of threat is done to try and make you pay up, and secondly, there's no "may register" about it, the bar stewards always do it, without exception.

So, did they invite you to Court to negotiate this point? Did they ask a judge to consider the facts of the case and find in their favour and ask him to issue a Court Order to file a default notice? Did they hell!

And why not??? Because there is NO statutory mechanism in English Law to allow them to do it. Judges can only order BOs and CCJs when it comes to money-owed issues. However, a default is as good as having a CCJ in your file and severely affects your credit score for the future.

So, you go to the bank, and offer to pay them back, and eventually they're happy and send the CRAs an instruction to put a "Settled" marker on your file. However, that particular account will still show as "Default" albeit "Settled".

You appeal to the bank to remove the entry altogether, and they say "get stuffed" and then you write to the CRAs and they say "get stuffed - you need to ask the bank to do it" and "by the way, we keep defaulted entries for six years".

So, if you then ask the CRAs, what Act of Law states that they can keep Defaulted account information for six years, they will reply with "It isn't Law... it's standard industry practice" unless, of course, it's the usual level of Neanderthal call-centre amoeba who wouldn't know how to spell 'Law' let alone know what it is!

So, back to the contract... which was the mechanism by which they 'think' they have a right to invoke this nasty little surprise.

In reality, there is, after all, no need for them to smack this data on your file... they got their money (which is all they wanted in the first place) and they probably won't lend to you again anyway. The default entry is their own pathetic little piece of spite, just to have the last say and make life hell for you for the next six years.

But, is it lawful? Not "Is it legal?" (that applies to the criminal law)... but lawful, as in, is there an agreement between you and them to say that they can arbitrarily decide whether to post this destructive piece of information.

My argument is "No, it is not" and I have used my letters to successfully to have adverse data removed, including a default which was registered because I refused to pay for a three-piece suite until it actually arrived. It ended up being delivered three months later than the contracted date, but was I allowed to tell Experian that Funriture World was "in default" and have it registered on their commercial - Was I hell? Why, because there was no contractual mechanism to allow me to do so.

Once a bank takes the decision to terminate the contract, the contract and all terms and conditions fade into nothing. There are, under the Consumer Credit Act, various provisions to allow them to recover any actual debt, but the rest of the Ts&Cs are effectively defunct and mothballed, and no longer apply.

So, unless the terms and conditions in your contract stated that you would allow them carte blanche permission to process your payment data indefinitely (even in the event of the contract terminating), where is their lawful permission to retain the data entry on you? It no longer exists under the terms of the contract that they decided to cancel.

What's more they know it, and under the Principles of the DPA, they are not applying any relevancy, or timely management, to the default marker... it is being applied solely as a last say.

The CRAs are chicken-*** scared of this becoming common knowledge and is, I believe, going to become their avalanche of cases, just like the banks with their rip-off charges.

The other important thing that struck me this afternoon is this...

Banks have a very one-sided clause with this "You agree to allow us to provide credit reference agencies with information relating to the running and conduct of your account" malarky.

But, where's the reciprocal clause for the consumer??

Are you able to register a default against them if they fail to provide a service correctly? Are you hell?

So, if this sort of thing ever happens to me again, I shall simply toddle off to Court and cite the following:

"Mr Judge, I would respectfully ask that you strike out the clause allowing the bank to register my payment history with the credit reference agencies as there is no reciprocal mechanism for me to be able to equally record any breaches of contract by them. If Sir, for example, the bank delayed making a refund to me for an incorrect payment or error, I have no mechanism by which to record such late payment information against them, or any other way by which to register their poor performance as a service provider.

Sir, if one refers to clause (o) of Schedule 2 of the UTCC Regulations it states that a term would be considered unfair, if it 'obliges the consumer to fulfil all his obligations where the seller or supplier does not perform his'.

Therefore, I contend that this is, in effect, an unfair term, and is therefore null and void".

Now that's one that I really want to try next time.:grin:

[SurlyBonds]

snip...She told me there is no such person as the Data Controller Manager nor is there any dept that deals with getting sensitive info for me and also doesnt know how to contact someone who deals with the credit reference agencies. :S She had also spoken to her line manager who inturn spoke to his manager (Whatever LOL) and they dont know about any of these people or who they are or how to contact them.

...snip

 

What was I saying about Neanderthal call-centre amoebas???:o

I would have asked them if they didn't have a Data Controller, how did they manage to apply for a Data Protection Licence... that would have really given them a headache.

 

It just amazes me how these people actually manage to coordinate their legs in a walking motion to get to work without falling over sideways... I have more IQ in my earwax than these Muppets have in total.

 

There is an FSA requirement for all financial companies to ensure that their staff are "fit and proper persons" and "competent to work" in such a sensitive industry. If that's their definition of fit and proper, I shudder to think about the CVs they must bin.

[Tobes]

Just to confirm, must the now defaulted account be settled first before you try this, or is it ok just for there to be a default, and therefore a termination of the contract?

[MARTIN3030]

Very good reading.

 

Presumably a letter can also be sent to dcas who have bought old accounts from banks.

forcing them to stop processing data ?

[SurlyBonds]

Just to confirm, must the now defaulted account be settled first before you try this, or is it ok just for there to be a default, and therefore a termination of the contract?

 

My view is simple. If the contract is terminated, then the permission to process your data is likewise terminated. Whether or not you have paid them back, I believe that your prior written authority is cancelled at the point of termination of contract. If they think they still have a right to process your data, inform them that you'd like to see a copy of your signature agreeing to this facility after the termination of the contract... whatever they perceive this new 'contract' to be!

 

However, I've only smacked it to them (and won) on the basis that the default was settled.

 

But, I still believe that my legal argument stacks up, either way. Contract finished = permissions finished.

[SurlyBonds]

Very good reading.

 

Presumably a letter can also be sent to dcas who have bought old accounts from banks.

forcing them to stop processing data ?

 

I think that the case against DCAs is even easier to prove. Whilst the Consumer Credit Act allows banks to transfer debts and amounts of alledged indebtedness, there is nothing in there that allows the transfer of the complete contract.

 

You have the right to renegotiate any term or condition when a contract is assigned, if you are not sure of the new company, or are convinced that the service offering may be reduced.

 

Again, Schedule 2 of the UTCC Regs.

Regulation 5(5)

 

 

 

INDICATIVE AND NON-EXHAUSTIVE LIST OF TERMS WHICH MAY BE REGARDED AS UNFAIR

 

 

1. Terms which have the object or effect of-

 

[...amongst others...]

(p) giving the seller or supplier the possibility of transferring his rights and obligations under the contract, where this may serve to reduce the guarantees for the consumer, without the latter's agreement;

 

Also, ask the DCA for a copy of your permission giving them the authority to process your data. This is even more important, as the Data Protection Act does not allow a Data Registrar to transfer your rights without informing you first, or to transfer it's obligations of Data Protection to another party without your prior written approval.

 

What this means is that the DCA should have written to you informing you that they have taken over the debt, and also included a form asking you to allow the transfer of all Data Protection rights to them. The exclusions to the opt-out facility state "in the course of performing such a contract" - DPA 1998, Section 12, Sub-section 6 (a) iii). Therefore, if the contract is null and void, and you haven't formally accepted their takeover of the contract, they're stuffed.

 

Banks can't go around terminating contracts and then arbitrarily resurrecting them, tranferring them to DCAs and then expect you to just roll-over and accept it. Unfortunately, most of the people in this country do!

 

If they can't provide a copy of the DPA transfer, send them a Section 10 and 12 Statutory Notice (see above in the thread) and give them 21 days to prove otherwise.

 

If they refuse, send a complaint to the Information Commissioners Office and raise a Court claim, requesting that they comply with the Stat. Notice, and charge them the Court fee.:grin:

 

And, let's face it, most DCAs are full of no-neck ex-con thugs who wouldn't know about the DPA if a copy was rolled up and stuffed up their backsides, let alone where to look to see if they're conforming.

 

A friend of mine is getting hassled by a DCA, and we have just about tied them up with so much paperwork, they now don't even know what to do or how to progress his case. They actually sent me a letter asking "for more time to understand the points made, and the chance to refer the matter to our legal department". But, I thought they were oh so up on their legal knowledge!

 

Unfortunately, there is an historic practice in this country of allowing debt collectors to basically get their own way. They are about the most unregulated bunch of crooks that ever crawled out the cesspit, and it defies belief that the majority of them can even be granted a Consumer Credit Licence.

 

We also have the status of those (supposedly) in charge to regulate these cowboys being about as effective as wet lettuce. The Information Commissioners Office are about as useless as you can get with the amount of complaints they are getting, and the FSA is run by banking executives anyway.

 

The crux of it all is that most of the regulators are placed in their jobs by this wholly corrupt and contemptible Government who cosy up to big business and accept their lobbying "pity poor us" pleas.

 

We now have more regulators than at any time in English history, yet have a relatively lower rate of upholding complaints, even those that clearly show that the big corporations are breaking the law.

 

So, thank you Princess Tony... you have achieved absolutely nothing whilst in power for 9 years, except toadied up to those who keep you in Number 10 with their corporate cheques...money made from profits generated by unlawfully stolen funds from people who can least afford it.