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I have asked a CRA to clean up inaccurate data on my credit file and have received the following responses.

 

This request was based on the fact that on a number of cases the flag is not supported by an enforceable agreement and in one case, Northern Rock, there are no signatures.

 

Thank you for your email, which we received on 18 March 2009.

 

I note your comments about the Northern Rock account and I see that you wish us to remove the account from your credit report on the basis that they have not provided you with evidence to confirm that they hold a copy of signed credit agreement detailing your consent for this information to be shared with a credit reference agency.

 

Companies are not obliged to supply you with an actual copy of the agreement you signed and you should further note that, if a company cannot provide you with any actual evidence of your initial consent, this does not necessarily mean that they have to remove the data from your credit report.

 

For example, if a company can demonstrate that an account was being paid on time for a number of months/years prior to falling into arrears, this is often seen as evidence that the individual concerned must have consented to the terms and conditions of the contract.

 

Furthermore, a company will only open an account if the applicant agrees to their terms and conditions so, unless the account was opened fraudulently, the account holder must have agreed to the standard terms and conditions for that type of account.

 

Therefore, as long as the company terms and conditions specify that they reserve the right to pass account information to a credit reference agency, a period of meeting contractual obligations, or simply opening the account, will often be deemed as evidence of consent to those terms and conditions.

 

Given that you have not denied opening the account and you are only disputing that you believe the account should not have been marked as defaulted, then this would not be grounds to have the entry removed because there is no signed agreement provided.

 

The common law of confidence, of which banking confidentiality is a sub category, provides the legal basis for the sharing of financial data.

 

The common law holds that a lender has an implied contractual duty to keep a consumer's affairs private, but that duty is qualified under the Tournier principles. (Tournier v National Provincial and Union Bank of England (1924) 1 KB 461, CA).

 

The case of Tournier v National Provincial and Union Bank of England set out four areas where a bank can legally disclose information about its customer. These principles still hold good today and are referred to in Section 11 of the Banking Code. They are:

 

Where the bank is compelled by law to disclose the information

If the bank has a public duty to disclose the information

If the bank?s own interests require disclosure; and

Where the customer has agreed to the information being disclosed.

 

It is considered to be in the legitimate interests of financial institutions to share data on individuals who have not adhered to the terms and conditions of any agreements they may have held. This is also qualified under Paragraph 6 of Schedule 2 of the Data Protection Act 1998.

 

With regard to all your points about the retention of data, I would refer you back to the previous correspondence you have had from our Directors' Office. That correspondence contained all the advice about this matter and we have nothing further to add in this respect.

 

As far as we are aware there is no requirement for companies to supply you with copies of the default notices originally issued. If you believe this to be incorrect, please advise of the legislation under which you are requesting this information. If a default notice was not issued this does not mean that an account does not exist and that it is not in arrears. It is only a requirement of those companies regulated under the CCA 1974 to provide a default notice in the prescribed form.

 

A Data Subject Access Request (DSAR) must be applied for in writing. When making your application please include the following information with your request; your full name, address details for the last six years and your date of birth. We will also require a fee of £10. A DSAR will provide you with all of the information Experian (as a business) may hold including your credit report. We are given 40 days upon receipt of your application to provide you with the relevant information.

 

The second to las paragraph is interesting as its in the CCA

 

The fact that an agreement is deemed unenforceable does not mean that the agreement and associated debt do not exist. It simply means that the company concerned cannot take enforcement action in respect of that debt.

 

It is important to consider the definition of enforcement in this respect. If a company are able to enforce an obligation it means they have the ability to force or order the obligated party to comply with their requests.

 

Consequently, in the instance of an unenforceable agreement, providing details of how the account has been conducted would not be considered enforcement action. When the company supply us with the payment history of the account you are not obligated to do anything and the company are not requesting that you do anything. It is obviously in your interests to maintain the agreed repayments against the contract but this does not mean that you have to.

 

It seems apparent from your previous correspondence that you have used funds made available to you by those companies and that you had no issue with the validity of the agreements you held until recently.

 

For your information I have copied below an extract from advice we have recently received from the Information Commissioner regarding the issue of unenforceable credit agreements:

 

1. The question of whether a legal liability exists in relation to a credit agreement is quite separate from the question of whether such a liability may be enforced by the creditor.

2. Where a liability does exist, creditors have a legitimate interest in sharing relevant information about that liability, including information about whether the amount due has been repaid. Such information may properly inform responsible lending decisions, regardless of whether the liability is enforceable.

3. Responsible lending decisions are dependant upon lenders receiving accurate information about individuals' ability (and/or inclination) to repay their debts.

 

Where a credit agreement clearly existed and credit has been provided to the debtor, but the debtor is not obliged to repay the loan due to the provisions of the Consumer Credit Acts, this does not mean that there was no agreement in the first place. It simply means that there was no enforceable regulated agreement.

 

We have queried the accuracy of the information with the companies concerned on more than one occasion and they have consistently confirmed that the data they are providing to us is accurate.

 

As I advised previously, we will not be suppressing this information from your credit report. If we did, this could potentially allow you to obtain credit that you would not otherwise be entitled to. This is because we would effectively be removing an outstanding obligation from your information.

 

I've written to the ICO and asked whether or not they did offer this guidance

 

Any help in rebuttal would be appreciated

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I have asked a CRA to clean up inaccurate data on my credit file and have received the following responses.

 

This request was based on the fact that on a number of cases the flag is not supported by an enforceable agreement and in one case, Northern Rock, there are no signatures.

 

 

 

The second to las paragraph is interesting as its in the CCA

 

 

 

I've written to the ICO and asked whether or not they did offer this guidance

 

Any help in rebuttal would be appreciated

 

Have you queried the entry through Experian to the Data Controller?

 

I think your beef is with the DC, but Experian can't protect themselves from claims by carrying on like this, IMHO.

 

It's all tosh, by the way - even the ICO is saying that irredeemably unenforceable agreements shouldn't result in CRA data being shared! The CRA's should get their house in order!

Always happy to help where I can!

:lol:

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Advice and comments posted by car2403 are offered purely without prejudice. They reflect only my personal opinion and do not represent the opinion of this forum or it's management. You should always seek legal advice from a qualified legal advisor. As a member of the site team, I disable reputation - reputation points mean nothing, please check my posting credentials yourself and make an informed decision. You shouldn't PM me and await a reply - I may be too late with a response. No replies will be given in Private Messages - just as with getting advice from the forum, getting advice via Private Messages is dangerous. CAG is about sharing successes so others can follow your example, this is primarily why I'm here, so please don't be offended if I don't offer replies in PM that doesn't comply with this. Help CAG to help others by keeping your thread up to date.

 

 

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It's all tosh, by the way - even the Information Commissioners Office is saying that irredeemably unenforceable agreements shouldn't result in CRA data being shared! The CRA's should get their house in order!

 

IS there something concrete on here I can refer to in my battle to get my CR reported accurately.

 

Mr H say that the ICO back the view that even tho the agreement is unenforceable the record remains that the account was being run irregularly.

 

I sent the following in response to both of the above

 

Thank you for your email dated 26 Mar 09, the contents of which are noted. If you don’t mind I’ll comment on Mr Numptys' email first as there are a few points (in italics) I’d like to take issue with.

‘Companies are not obliged to supply you with an actual copy of the agreement you signed and you should further note that, if a company cannot provide you with any actual evidence of your initial consent, this does not necessarily mean that they have to remove the data from your credit report.

For example, if a company can demonstrate that an account was being paid on time for a number of months/years prior to falling into arrears, this is often seen as evidence that the individual concerned must have consented to the terms and conditions of the contract.’

Please ask him to provide me with an example of where ‘in evidence’ any recognised authority has agreed that this is so?

‘Furthermore, a company will only open an account if the applicant agrees to their terms and conditions so, unless the account was opened fraudulently, the account holder must have agreed to the standard terms and conditions for that type of account.’

This statement is an assumption, as I have had removed a number of organisations who never sent an agreement for my signature nor was I asked to refer to their T&Cs at anytime in the process. e.g. Littlewoods

‘Therefore, as long as the company terms and conditions specify that they reserve the right to pass account information to a credit reference agency, a period of meeting contractual obligations, or simply opening the account, will often be deemed as evidence of consent to those terms and conditions.’

If I have not seen an agreement nor had the T&Cs pointed out how could I have consented to the sharing of my data, again as he has used the word evidence I request an example of said.

‘Given that you have not denied opening the account and you are only disputing that you believe the account should not have been marked as defaulted, then this would not be grounds to have the entry removed because there is no signed agreement provided.’

I can only ask you to consider whether it is fair to rely on data that is obtained from the ’fruit of a poisoned tree’. There is no judge in the world that will convict a suspect on evidence that is obtained unlawfully.

With no enforceable agreement (a signed agreement with all the prescribed terms), the case law is clear under s127 [3] it’s unenforceable and therefore all actions resulting from this must be negated, this morally should include entries in credit reports as a high court judge has ruled that the agreements must be enforceable in law ergo, if its not capable of reaching this standard the data is flawed and therefore inaccurate and inadmissible.

‘The common law of confidence, of which banking confidentiality is a sub category, provides the legal basis for the sharing of financial data.’

Honestly have a word with him will you, quoting common law is not sufficient to allow the data to be shared without my permission and if shared it must be accurate, where I contend it is not.

‘It is considered to be in the legitimate interests of financial institutions to share data on individuals who have not adhered to the terms and conditions of any agreements they may have held. This is also qualified under Paragraph 6 of Schedule 2 of the Data Protection Act 1998.’

Which court of law or government organisation has said that this interest is legitimate?

‘As far as we are aware there is no requirement for companies to supply you with copies of the default notices originally issued. If you believe this to be incorrect, please advise of the legislation under which you are requesting this information.’

I do like a joke, but really, if they are considering legal action or have placed a default on my credit record then I am entitled to this information to assess if it was issued within the law. I can obtain this information in a number of ways not least of which is the Data Protection Act or Civil Procedure Rules 31.16.

Where I have asked you to investigate the lack of default notice, I request that you ensure that the data is accurate and where an organisation states it is. I then require you to confirm this statement by the creditor, in writing, so that I may report them to the Information Commissioners Office for not complying with my Subject Access Request.

‘If a default notice was not issued this does not mean that an account does not exist and that it is not in arrears. It is only a requirement of those companies regulated under the CCA 1974 to provide a default notice in the prescribed form.’

To lend money on credit an organisation must have a Consumer Credit License and as such must abide within the constraints of the Consumer Credit Act.

Onto your email

‘Consequently, in the instance of an unenforceable agreement, providing details of how the account has been conducted would not be considered enforcement action. When the company supply us with the payment history of the account you are not obligated to do anything and the company are not requesting that you do anything.’

I am obliged to ensure that statements on my credit report reflect the true state of affairs and the company are requesting me to do something, as I must ensure that their statements are factual and not in error.

For instance, there are a number of reports in my file that show default, where this may have been the case, I have been, for a number of years, in an arrangement to pay e.g. Egg, British Gas and Capital one. I do hope you would agree making regular payments (which I can prove) is a far way from being in default.

‘It is obviously in your interests to maintain the agreed repayment against the contract but this does not mean that you have to.’

Is it a fair reflection of my credit worthiness that these 3 accounts are reflected as in default where I am actually paying them? I contend these entries are not an accurate reflection of the status of the account

‘It seems apparent from your previous correspondence that you have used funds made available to you by those companies and that you had no issue with the validity of the agreements you held until recently.’

SIR ANDREW MORRITS JUDGMENT IN THE COURT OF APPEAL IN THE WILSON & FCT CASE

 

“In effect, the creditor--by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms--must (in the light of the provisions in ss 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift,of the loan moneys to the debtor.

The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid;”

It was an expectation of mine when entering into these agreements that they would be executed and managed within the law, the fact that they haven’t, the relevant case law would suggest that the use of these funds may be deemed a gift.

‘For your information I have copied below an extract from advice we have recently received from the Information Commissioner regarding the issue of unenforceable credit agreements:

1. The question of whether a legal liability exists in relation to a credit agreement is quite separate from the question of whether such a liability may be enforced by the creditor.

2. Where a liability does exist, creditors have a legitimate interest in sharing relevant information about that liability, including information about whether the amount due has been repaid. Such information may properly inform responsible lending decisions, regardless of whether the liability is enforceable.

3. Responsible lending decisions are dependant upon lenders receiving accurate information about individuals' ability (and/or inclination) to repay their debts.

I have requested confirmation from the Information Commissioners Office regarding the above.’

Where a credit agreement clearly existed and credit has been provided to the debtor, but the debtor is not obliged to repay the loan due to the provisions of the Consumer Credit Acts, this does not mean that there was no agreement in the first place. It simply means that there was no enforceable regulated agreement.

Please see the reference above Sir Andrew is clear there must be an agreement in place any action to be taken in respect of said.

‘We have queried the accuracy of the information with the companies concerned on more than one occasion and they have consistently confirmed that the data they are providing to us is accurate.’

Not that I doubt your word but I could see no evidence of your investigations in the Subject Access Request data that was sent to me by your organisation. If you sent letters, emails requesting acknowledgement that the data entry was correct then this is my data and should have been included in the data you sent in response to my Subject Access Request.

If you omitted to include these requests then please do so now.

‘As I advised previously, we will not be suppressing this information from your credit report. If we did, this could potentially allow you to obtain credit that you would not otherwise be entitled to. This is because we would effectively be removing an outstanding obligation from your information.’ I would like you to inform me by what qualification or standard you made this assumption, the only obligation you’re required to assure is that the data is accurate which I’m insisting in a number of cases is not and yet you’ve failed to provide me with the proof that it is.

I believe the following organisation is managed by Experian, please confirm that when you returned my data file you included all the data that they hold on me as well;

N Hunter Limited, PO Box 2756, Stoke-on-Trent, ST6 9AQ

In closing, my apologies for the length of this letter, I hope you will realise that you and your colleague left a lot for me to comment on.

I look forward to your ‘detailed’ response

I'm not an expert so check everything I tell you, however click me scales if I've been useful.

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Mr H say that the ICO back the view that even tho the agreement is unenforceable the record remains that the account was being run irregularly.

 

That's right if it's enforceable under s.65, but not if s.127(3) excludes enforcement.

Always happy to help where I can!

:lol:

Beware of legal advice given on a private forum - do you REALLY know who is posting? Are they REALLY accountable for their posts? What if you follow their advice and get something wrong?

It was Winston Churchill who said; "Democracy is the worst way to run a country except for all the others"

 

Advice and comments posted by car2403 are offered purely without prejudice. They reflect only my personal opinion and do not represent the opinion of this forum or it's management. You should always seek legal advice from a qualified legal advisor. As a member of the site team, I disable reputation - reputation points mean nothing, please check my posting credentials yourself and make an informed decision. You shouldn't PM me and await a reply - I may be too late with a response. No replies will be given in Private Messages - just as with getting advice from the forum, getting advice via Private Messages is dangerous. CAG is about sharing successes so others can follow your example, this is primarily why I'm here, so please don't be offended if I don't offer replies in PM that doesn't comply with this. Help CAG to help others by keeping your thread up to date.

 

 

USEFUL LINKS; New User Guide to CAG | Can't find what you're looking for? | Intro to Consumer Credit Litigation | Is My Agreement Enforceable | Default (Surleybonds) Template Letter | Defaults - background, removal methods, challenges and taking a claim to Court | Digital Signature Guide | Overdrafts and the CCA

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  • 3 weeks later...

Any updates Conar?

 

I've just had a creditor tell me they have no CCA but will continue to register adverse credit with CRA and naturally want to challenge. So, would be interested in hearing if you have had any success!

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Nothing back from ICO yet but they are elephantine in their responses so it'll be weeks yet.

 

The only recourse I can see is to test it in Court and I can't financially afford to do that

 

I'll post up whatever I get.

 

Mr H has responded by saying we're not talking to you any more - I'm upsetting the 'nice man' or am I getting close to something?

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Mr H has responded by saying we're not talking to you any more - I'm upsetting the 'nice man' or am I getting close to something?

 

:D lol That made me smile!!

 

I'm sure they know it's a grey area and open to challenge. Unfortunately, as you said, until such time as someone has the inclination and financial means to challenge it in court then we're pretty much stuck with it!

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I'm wondering if I send him an email every day to ask for a response, will he accuse me of harassment:D.

I'm not an expert so check everything I tell you, however click me scales if I've been useful.

Light travels faster than sound. This is why some people appear bright until you hear them speak.

 

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I'm wondering if I send him an email every day to ask for a response, will he accuse me of harassment:D.

 

Maybe ever soooo slightly!! :D

If you feel I've helped then by all means click my star to the left...a simple "thank you" costs nothing! ;)

 

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How about replying that you only gave permission to share your data, because you assumed you had an enforceable and regulated agreement.As it's not the case your permission to share data is not valid therefore it has to be removed.

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How about replying that you only gave permission to share your data, because you assumed you had an enforceable and regulated agreement.As it's not the case your permission to share data is not valid therefore it has to be removed.

 

If only it were that simple!!

 

The ICO seems to be sitting on the fence. I've read their book about credit and it is rather pathetic. Still researching it out, same as Conar, but the creditors appear to believe that they have a right to process your data regardless of whether or not you've agreed!!

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Permission is not a requirement anymore the ICO and the CRAs seem to think that they are there to guard against the great unwashed taking unfair advantage of the poor 'bankers' by asking for credit when they are not entitled or able to afford said.

 

Anyway the ICO is paid for by the finance industry so why should they help us?

I'm not an expert so check everything I tell you, however click me scales if I've been useful.

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Update a response from Mr H

 

Please feel free to comment as this was in an email and the formal letter is in the post?

 

I will clarify a few further points for you, although I would suggest that you seek professional legal guidance prior to proceeding with any form of claim.

You asked for evidence of my statement that common law is a sufficient basis for the sharing of information and I refer you to the case of Tournierv. National Provincial and Union Bank of England (1924). This case set out four areas where a bank can legally disclose information about its customer. These principles still hold good today and are referred to in Section 11 of the Banking Code. A simple search of the Internet should provide you with any further information you require about this case and its impact.

The Information Commissioner's guidance I previously enclosed is a single sheet that was quite succinct in its explanation. However, for further clarity, this clearly states that credit reference agencies do not require consent to process account information. You appear to believe that consent is the only requirement under which we can process account information and that we require your authorisation to do so. The Information Commissioner goes on to state:

It is our view that the condition for processing below covers the sharing of account data with the credit reference agencies for the duration of a contract and six years beyond.

"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 because of prejudice to the rights and freedoms or legitimate interests of the data subject."

We take a wide view of the legitimate interests and we consider that it is in the interests of other creditors to make informed lending decisions. It is important to note here that the fact that the processing may be seen by some to prejudice a particular individual (for example, someone with an adverse entry on his credit reference file may not be able to obtain credit facilities) does not necessarily render the whole processing operation prejudicial to all individuals.

For your information, the creditors own legitimate interests was also one of the four principles set out in the case of Tournierv. National Provincial and Union Bank of England (1924).

The registration fees all data controllers are required to pay fund the Information Commissioner. Consequently, all companies who hold a data protection license fund the Information Commissioner. I am uncertain of the basis of your statement. The Information Commissioner's web-site does contain details of enforcement notices they have issued against various organisations who all help to fund the work of the Information Commissioner's Office.

With regards to the appeal by the Secretary of State, while this did not particularly change the outcome in respect of the effect on Mrs Wilson and First County Trust, the judgment was reversed on certain grounds. I was not attempting to mislead you and certain comments made during this appeal could have a significant impact on your arguments. However, I would again suggest seeking professional legal guidance on this matter.

I previously suggested that you consider the definition of enforcement and still abide by this suggestion. The fact that the enforceability of an agreement has no impact on its lawfulness, as described by various law lords and the Information Commissioner's Office, subsequently impacts on a companies ability to share data relating to that agreement.

Information is shared with the credit reference agencies under the provisions of Paragraphs 1 and/or 2 and/or 6(1) of Schedule 2 to the Data Protection Act 1998.

As I stated above, it is not a requirement for you to 'authorise' the use of your data. The Data Protection Act 1998 simply makes it a requirement for companies to ensure individuals are aware of the purposes for which their personal information may be used. This will usually be relayed by way of fair obtaining or processing notices. However, it is only a requirement that you are aware of these notices and not that you necessarily agree with them.

The primary reason that consent is not considered a valid basis for the sharing of information with the credit reference agencies is because it cannot be freely given. This is because if you do not agree to your data being shared then your application for credit will simply be rejected. In other words you have no choice if you want the credit on offer and any notification is usually given prior to a contract being entered into.

I have explained that the status history of "8" shows that, at the default date, the account was not being managed according to the original contract.

You have stated that you have entered into arrangements with those companies recording defaults on your credit report. If you believe that the default status is incorrect then please confirm that you are still, and always have, maintained the original contractual repayments against these accounts. I will then be happy to contact the companies again on your behalf.

Regardless of this, the account information we hold actually belongs to each supplying lender. Only they can amend it or tell us to amend it for them. We cannot amend or delete entries without a lender's direct consent. Subsequently, you may wish to address this matter with the companies directly.

The queries we raised and response we received from those companies whose data you queried were included within your Data Subject Access Request. However, for ease of reference I have enclosed the most recent responses we have received in respect of data you have queried.

In response to the specific questions you have raised:

 

  1. The Information Commissioner expressed this opinion in the guidance that I previously quoted to you. I understand that the Department for Business Enterprise & Regulatory Reform also upholds this opinion.
  2. I again refer you to Tournierv. National Provincial and Union Bank of England (1924).
  3. While you believe that our only obligation is to ensure that the data we hold is accurate, we do have further obligations to our clients within our role as a credit reference agency. Government has recently addressed this when looking at the issue of consumer indebtedness. The Government is keen to promote responsible lending as part of its strategy to minimise over-indebtedness. One aspect of responsible lending concerns the making of lending decisions. Lenders are encouraged, wherever practicable, to consider the full extent of a consumer's credit commitments when deciding whether or not to lend to that individual. As a credit reference agency, we provide the technical means to enable companies to make informed lending decisions and consequently have a further obligation to ensure that companies can base a decision on the maximum amount of available data.

As I stated previously, if we did remove any information from your report this would consequently not portray an accurate reflection of your outstanding commitments. I am basing this assumption on your previous comments that you are in an agreement with the companies concerned and consequently do still owe them money.

I will be happy to investigate these matters further if you can provide me with any evidence of your claims that the data is inaccurate.

N Hunter Limited is an independent company. The only reason I believe we can be said to have links to them is due to the fact that we provide the technical means for companies to access the data that they hold.

While you state that the questions you have asked are different, albeit of a similar 'flavour', I do feel that they are excessive and largely repetitive.

The challenges you have put forward relate to matters that can only be considered by a court of law. Continually asking us similarly themed questions is not going to result in the data being removed from your credit report. Consequently, we will not be responding to any further queries on these matters.

Please note we also reserve the right to cancel your CreditExpert membership in accordance with Section 7(e) of the terms and conditions you have agreed to should you proceed with further correspondence that we deem excessive:

Section 7(e):

We may also suspend or cancel your Registration and terminate your use of the Services immediately if we notify you that (i) we reasonably believe that your use of the Services is excessive or is likely to degrade the performance of the Services for other members subscribed to it (ii) you have committed a serious breach of these Conditions or (iii) if you become bankrupt.

I'm not an expert so check everything I tell you, however click me scales if I've been useful.

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Section 7(e):

We may also suspend or cancel your Registration and terminate your use of the Services immediately if we notify you that (i) we reasonably believe that your use of the Services is excessive or is likely to degrade the performance of the Services for other members subscribed to it (ii) you have committed a serious breach of these Conditions or (iii) if you become bankrupt.

 

Made me larf cause I canceled the DD before the 30days, wot a K N O B

 

Bottom line, someone with funds has to challenge this in court b4 they will amend their behavior, reckon I'm getting on his nerves or what?

I'm not an expert so check everything I tell you, however click me scales if I've been useful.

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Made me larf cause I canceled the DD before the 30days, wot a K N O B

 

Bottom line, someone with funds has to challenge this in court b4 they will amend their behavior, reckon I'm getting on his nerves or what?

 

 

The bottom line is that they would be out of business if we could all withhold our data, hence, his rather dismissive response. :mad:

 

Yes, do seem to have irritated him just a little!! :p

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Permission is not a requirement anymore the ICO and the CRAs seem to think that they are there to guard against the great unwashed taking unfair advantage of the poor 'bankers' by asking for credit when they are not entitled or able to afford said.

 

The DPA doesn't make consent a requirement to process data, but they must comply with one of the other exceptions if they don't have your consent - usually, a legitimate interest in the processing is relied on by CRA's, claiming to be providing a service to the credit industry to prevent irresponsible borrowing.

 

Don't get me started... :eek:

 

Anyway the ICO is paid for by the finance industry so why should they help us?

 

Not being one to question you, but could you be getting the ICO mixed up with the FOS here? The ICO is Government funded?

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Not being one to question you, but could you be getting the ICO mixed up with the FOS here? The ICO is Government funded?

 

IMHO the ICO is paid by every organisation that has the right to process data, finance orgs have signed up as data controllers ergo they pay for the ICO too.

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Update from the ICO

 

Dear Sir/Madam

Thank you for your email of 28 March 2009 regarding an enquiry about the advice you have bee provided with by the credit reference agency, Experian.

As I understand it you are seeking clarification that the Information Commissioner’s Office (ICO) has provided Experian with the following advice in relation to unenforceable credit agreements:

‘For your information I have copied below an extract from advice we have recently received from the Information Commissioner regarding the issue of unenforceable credit agreements:

 

1. The question of whether a legal liability exists in relation to a credit agreement is quite separate from the question of whether such a liability may be enforced by the creditor.

2. Where a liability does exist, creditors have a legitimate interest in sharing relevant information about that liability, including information about whether the amount due has been repaid. Such information may properly inform responsible lending decisions, regardless of whether the liability is enforceable.

3. Responsible lending decisions are dependant upon lenders receiving accurate information about individuals' ability (and/or inclination) to repay their debts.’

I can confirm that the information Experian has provided you with is in line with the ICO’s approach to unenforceable credit agreements.

I hope you have found this information useful to you.

Yours faithfully

A N Other K N O B

Casework and Advice Officer

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As Mr H referred me to s11 of the Banking here are the relevant parts

 

• If we have to give the information by law.

• If there is a duty to the public to make the

information known.

• If our interests mean we must give the information

(for example, to prevent fraud). However, we will not

use this as a reason for giving information about you

or your accounts (including your name and address)

to anyone else, including other companies in our

group for marketing purposes.

• If you ask us to make the information known, or if

we have your permission.

 

From what I can see, only bullet 3 comes close to a reason why Bankers may share data.

 

Tournierv. National Provincial and Union Bank of England from the wiki

 

Tournier v. National Provincial and Union Bank of England was a landmark 1924 legal case in the United Kingdom. It established the conditions under which banks owed confidentiality to their clients, allowing four circumstances wherein banks were not required to guard privacy: where compelled by (1) law, (2) public duty, (3) the interest of the bank, or (4) where the client had consented, even implicitly, to disclosure.[1]

 

So this only applies to Banks sharing data, would it also apply to store cards or other non banking financial organisations?

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Anyone know the comments referred to regarding an appeal against Wilsons

 

With regards to the appeal by the Secretary of State, while this did not particularly change the outcome in respect of the effect on Mrs Wilson and First County Trust, the judgment was reversed on certain grounds. I was not attempting to mislead you and certain comments made during this appeal could have a significant impact on your arguments.

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The response was to be expected Conar...this a link to the appeal case I believe...am reading it now...

 

Wilson v First County Trust Ltd [2001] EWCA Civ 633 (2 May 2001)

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More from the FOS and my response with help from PT

 

From The ICO

 

I can confirm that our approach was developed by our Data Protection Policy department. The outcome of this review was the provision of the following ‘line to take’:

As you know, the Consumer Credit Act 1974 has been amended by the Consumer Credit Act 2006 – in particular by section 15 of the 2006 Act, which provides for section 127(3) – (5) of the 1974 Act to cease to have effect. This means that credit agreements which would previously have been irredeemably unenforceable because they are unsigned, may now be enforced by court order. This change does not have retrospective effect and so I understand that unsigned credit agreements made before 6 April 2007 (the day on which section 15 of the 2006 Act came into force) remain irredeemably unenforceable.

In view of the enactment of section 15 of the 2006 Act, we have given fresh consideration to the circumstances in which the credit reference agencies should be permitted to record details of unenforceable credit agreements. In doing so we have had particular regard not only to the clear legislative intent that the absence of a signature on a credit agreement should no longer be an absolute bar to enforcement, but also to the following factors:

1 The question of whether a legal liability exists in relation to a credit agreement is quite separate from the question of whether such a liability may be enforced by the creditor.

2 Where a liability does exist, creditors have a legitimate interest in sharing relevant information about that liability, including information about whether the amount due has been repaid. Such information may properly inform responsible lending decisions, regardless of whether the liability is enforceable.

3 Responsible lending decisions are dependent upon lenders receiving accurate information about individuals’ ability (and/or inclination) to repay their debts.

Where a credit agreement clearly existed and credit has been provided to the debtor, but the debtor is not obliged to repay the loan due to the provisions of the Consumer Credit Acts, this does not mean that there was no agreement in the first place. It simply means that there was no enforceable regulated agreement.

It follows that, where the existence of the agreement is not in doubt, we consider it to be appropriate for information about the agreement, including any failure by the debtor to repay his or her debt, to be recorded with the credit reference agencies. Where a ‘debtor’ disputes the existence of any credit agreement, enforceable or otherwise, we would ask to see evidence of the agreement and of its terms. This might include evidence of the provision of the credit facility or of a history of payments made by the debtor.

I hope you have found this information useful and trust that it clarifies our position on the matter.

 

My emailed response

 

IMHO, enforceability must be judged by the law at the time of taking out the agreement. In my mind pre 2007 agreements were governed by a different law and should therefore be judged by a different set of standards

 

The Wilson case set a precedent in the High Court and even when appealed it was not overturned, I para phrase that;

 

'If the lender has failed to ensure that there was a signed agreement then it cannot give rise to any liability or obligation to pay, save for a moral obligation however the court does not enforce moral obligations only legal ones

 

it follows that the term default implies a breach of an obligation to pay and clearly there cannot be an obligation for a debt which falls under the 1974 Act as the act sets out how the contract must be made and presented.

 

As quite rightly pointed out by Morrit VC in Wilson the lender has chosen to part with monies under the circumstances where it is not entitled to recover them.

 

As far as I'm concerned, a contract without consideration is a GIFT English law seems to support that view, the only difference is where a contract is formed on a Deed.

 

If the agreement is deemed unenforceable as it does not meet the standard for 'prescribed terms' then it is unenforceable, deemed a gift in law and should form no part of a persons credit report as to do so would make it inaccurate.

 

Another view would be that information obtained from 'a poisoned tree' cannot form evidence of consent or any other of the requirements for sharing a persons' data.

 

I look fwd to your view

  • Haha 1

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Lets see what they come back with if the come back at all, as to argue this point would mean they'd have to fix on legal opinion, I'll bet they ignore my email, as to say nothing is better than stating I have apoint and opening the flood gates.

 

The genius statements were all down to PT, I can take no credit for them

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A final response from ICO

 

I write in response to your email of 29 April 2009.

 

The Information Commissioner’s duties

 

Under the Data Protection Act 1998 (DPA), the Information Commissioner has a general duty to give advice about the requirements of the DPA and, under certain circumstances, to investigate DPA related complaints.

 

Our case review and service complaints policy

 

owever,However, where an individual is not satisfied with the way we have handed their DPA related enquiry or complaint, they can ask us to review it, at a more senior level, in accordance with our case review and service complaints policy.

 

Background

 

As I understand it you contacted us because you wanted to query whether the advice you had received from Experian about unenforceable credit agreements had come from the Information Commissioner’s Office.

 

Our response

 

Your enquiry was acknowledged on 20 April 2009 and then passed to Casework and Advice Officer, Mr Adrian Brocklehurst, to deal with. Mr Brocklehurst emailed you on 22 April 2009 to confirm that the advice you had received was in line with our approach to unenforceable credit agreements.

 

You responded by return asking for details of how we had arrived at this decision and our reasoning behind it.

 

On 29 April 2009, Mr Brocklehurst sent a further email to you explaining that our Data Protection Policy Department had considered this matter and developed a line to take for the office. He copied the internal advice into his email; the details of which clearly explain the reasoning behind our view.

 

You were clearly concerned about our approach and so you sent a further email to Mr Brocklehurst quoting case law and claiming that finance provided under an unenforceable credit agreement is a gift and that it should not form part of an individual’s credit reference file.

 

Mr Brocklehurst acknowledged your email in line with our case review and service complaint procedures on 6 May 2009. Your case was then subsequently passed to me for consideration.

 

Your complaint

 

I have reviewed the advice provided by Mr Brocklehurst in response to your enquiry and I can confirm it is in line with our approach. I do not accept your argument that finance provided under an unenforceable credit agreement is a gift – at the time it was taken out there would clearly have been an understanding on the consumer’s part that they were required to pay it back.

 

As Mr Brocklehurst explained where a credit agreement clearly existed and credit has been provided to the debtor, but the debtor is not obliged to repay the loan due to the provisions of the Consumer Credit Acts, this does not mean that there was no agreement in the first place.

 

Our view is clear that where there has clearly been an agreement in place (enforceable or otherwise) information about that agreement can be shared with the credit reference agencies.

 

I do not think that there is anything further that I can usefully add in response to your enquiry. If you would like to telephone me to discuss it my number is at the bottom of this email.

 

Your case will now be closed on our systems

Does this mean that I've reached the end of their complaints procedure :D

I'm going to challenge her view that its my argument that without an enforceable credit agreement on the grds that its a high court view.

 

I think I've basically been told to naff off and stop bothering us you nasty frisp u

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