O2 Put default on my credit file after 4yrs seeking help please!

[locutus]

Back on topic LOL

 

All mobile phone providers have to sign up with an ADR (alternative dispute resolution) scheme, and if the ADR makes a descision the mobile provider is bound to that descision.

 

Otelo are the ADR that deals with o2. If you ask o2 to either sort this to your satisfaction or send you a deadlock letter (and you recieve the deadlock letter), or if 12 weeks have passed since your complaint, you can escelate the complaint to Otelo. Here are their contact details :- Office of the Telecommunications Ombudsman - Contact Us

[fuzzyfuzzy]

From experience and some very good help I can say that as Buzby suggests, keep on and on and on at them. But, be clever, dont shout and scream, point out inacuracies, problems and inconsitancies. Keep on at them, cc emails and letters to the CEO, Data Controller, Legal team, Compliance, Complaints etc etc.

 

Try to cost them as much money in administration as possible. Using the Money claim online is a good tool (I know this is for money and not a course of action) but it is good leverage to get claim for damages and distress that will then cost them time and money to investigate and eithier defend (very very unlikely or make an agreement with you to remove it), it will cost you around £30 and takes about 15 mins to do online.

 

Keep threatening them with complaints to their ADR (mentioned above) OFT, ICO and anyone else you can think off.

 

The key is probably to be as much of a pain and cost in their life as they are to yours. Emails are quick, cheap and effective and can be used in court.

 

Get a SAR from them and try to pick apart anything that is wrong in the way they have managed your account (you never know it may even detail why they d/d wasnt collected)

 

Eventually, fingers crossed. they might pull their moronic heads out the sand and realise that the time and cost to them is VAST and they will hopefully just remove it.

 

The ICO guidance does state 6 months should be maximum defaults applied, whilst they dont have to comply with this. I would ask them if they do or not as if they say yes then they have got q's to answer why they only follow certain elements and choose to ignore what they feel they dont like.

 

As for 4 years, frankly that is ridiculous, how anyone with a ounce of intelligence can say that it can be applied 4 years after default is insane.

 

Keep on, keeping on!

[alfa1_steve]

Hi Locutus

 

Thank you for the reply and the information regarding the ADR, i am a little apprehensive using these when a complaint seems to have hit deadlock. The reason is that if otelo where to find against me i feel it would leave me with no where else to go.

 

If i was to proceed with court action i feel like it would go against me if i was found against.

 

Thank you fuzzyfuzzy for your response and advise.

 

I think this will be my course of action to hassle them to death but as you say ask some questions first ie "does o2 comply with ico recommendations on placing defaults"

 

Like you suggested if they say yes i will use this against them, i will do all of this before starting my barrage of letters.

 

I just hope i can achieve the desired goal within the two and half months.

 

Thank you all for taking the time to help me with this problem and as always keep them coming if you have anything to add

 

once again thank you guys n girls:cool:

[fuzzyfuzzy]

Hi Locutus

 

Thank you for the reply and the information regarding the ADR, i am a little apprehensive using these when a complaint seems to have hit deadlock. The reason is that if otelo where to find against me i feel it would leave me with no where else to go.

 

If i was to proceed with court action i feel like it would go against me if i was found against.

 

Thank you fuzzyfuzzy for your response and advise.

 

I think this will be my course of action to hassle them to death but as you say ask some questions first ie "does o2 comply with ico recommendations on placing defaults"

 

Like you suggested if they say yes i will use this against them, i will do all of this before starting my barrage of letters.

 

I just hope i can achieve the desired goal within the two and half months.

 

Thank you all for taking the time to help me with this problem and as always keep them coming if you have anything to add

 

once again thank you guys n girls:cool:

 

This is why i say email them, i have been going thru an attempted default removal with orange and its been over 2 and a half months. I doubt i would be half as far as i am now if i had written to them tho.

 

Yeah basically try to do some research ask questions and try to get them into a corner. The ICO guidance says that they must issue a notice to say they will be 'defaulting' you before doing it. So if they follow this guidance then they should have issued the notice, if this doesnt come up in a SAR then you can start asking more questions etc.

 

Have a look at my thread as there is some interesting points made by others that might help you.

http://www.consumeractiongroup.co.uk/forum/telecoms-mobile-fixed/193138-how-long-after-disconnection.html#post2087974

[alfa1_steve]

Hi All

 

I have an update for you, my employer is getting quite pushy about this at over the last few days and today i decided i would call o2 collections as advised by the credit ref agencies to see if i can get the ball rolling any quicker.

 

I know every one advises to only communicate in writing and will do so after this initial contact with.

 

I called the collection department and spoke to a ladie who was very helpful, i gave her all of the information posted on previous posts so she would have all the back ground information.

 

I asked her if o2 follows guidance by the ico around defaults etc which she stated they did (telephone conversation reordered)

 

She looked into the account and said something does not appear to be right as the contract i had was for 12 months but i have been billed for termination fees etc relating to a 18 month contract, she said the notes and system information are very sketchy.

 

She said it was strange that i had not received any demand letters from themselves or dca as this is normal practice.

 

She said it was not correct and that the only people that could help would be customer services so she transfered me over.

 

I spoke to a nice guy there and explained everything again.

 

He said really the same thing as the ladie in the collections department but then went onto another system and said that there was a note about an upgrade in JAN or Feb 2007.

 

I explained this could not be the case as the contract was canceled in sep/oct and this was when and that the final dd was taken in oct 2006(he said no notes on the system to this effect)

 

I explained that i was in abu dhabi at the time so was impossible to upgrade contract and also another point that if o2 had taken what i thought was final payment in oct 2006 with no other payments taken at all how can i upgrade in jan or Feb 2007, WHO PAID FOR NOV 06, DEC 06, JAN 06 ETC

 

I said could this be a computer or human input error and he said this is very possible.

 

The guy said yes this does appear to be strange as they would not upgrade if an account was in arrears which it would of been if not payment was taken.

 

He said he would really like to get his team leader to look over it as there was no notes etc and the information did not make any sense at all and that he would like to call me back.

 

He called me back and explained that every one has had a look at the account as none of it makes any sense his team leader could not make any sense of it so she called the ops manager who could not make any sense of it.

 

He said the 800 and odd pound only relates to this upgrade and that the account previous account looked ok.

 

He said i have explained the urgency of getting this resolved (ie your job) to my TL and OPS manager and that the ops manager has emailed a department that does not accept mail directly from customers but on this occasion he will e-mail them and request that they accept my e-mail explaining every think over again and they would get back to me within 3 working days with a response.

 

The guy said he has input all my notes on the system and that in my email quote he's ops manager name his TL name and his name with ext number so if they need to contact him for more info they can do.

 

Thats all, i feel a little relieved i know now more information as to what has happened but worried at the same time about this upgrade that is on the system.

 

I am going to start to write this e-mail now and would like to post it before sending it so you can scrutinize it and spot any mistakes etc before i send it.

 

Any points of view as always are welcomed with open arms:cool:

[alfa1_steve]

This is the letter i intend to e-mail to o2

 

If any one would like to suggest anything please dont hesitate to post

 

i'll thank you i advance for reading such a long letter and your help.

 

Dear xxxxxxxxxxx

 

I have been given this e-mail address from the operation managers named above so that this problem can be resolved in the quickest manner possible. He explained to me that he would e-mail you first so that you where aware this email would be sent from myself.

 

In order to remove any doubt about the circumstances of this query/complaint i will give you all of the background information.

 

 

I xxxx xxxxxxxx entered into a contract with o2 in February 2006 and all payments where made to the 02 account via direct debit. On or around the 20th of september 2006 i was relocated to Abu Dhabi because of work and decided that i would cancel my contract with o2 which i did over the telephone. The Lady i spoke to explained that i would have to pay line rental for the remainder of the contract and that it could take up to 12 weeks for all of the roaming charges to come through and that it would be taken on my final bill and not to cancel my direct debit. I can also vaguely remember making one more payment via debt card for the roaming charges.

The Final direct debit was taken by o2 on the 20th of October 2006 for approximately £218 pound and the direct debit remains active to this date which the bank can verify in writing if required.

 

I thought that this was the end of the matter until in january of this year 2009 i checked my credit file as i do every three months and found a DEFAULT registered by o2 in December 2008. The credit file shows no other history other than Default December 2008, January 2009, February 2009, March 2009 and April 2009.

 

I then contacted all three credit reference agencies ( expirian, eqifax and call credit) and explained this must be a mistake and would they dispute this information with o2. As requested they disputed the information with o2 to which o2 replied that the information was correct and that the default would not be removed.

 

I then today called o2 collection department as advised by the credit reference agencies and spoke to Laura. I gave her all of the information i have given you above and she looked into the account and said that something does not seem right as i was on a 12 month contract but the bill relates to an 18 month contract. I confirmed that i have never had two contracts with o2 and that the 12 month was canceled when i relocated to Abu Dhabi. Laura then said something was definitely not correct and that i would need to speak to customer services in order to check the bill and have it corrected or canceled. I then explained that i did not rent out our property while i was residing in Abu Dhabi but did come back every 2-3 months to see family and friends and i have have never received and demand letters, default notices or letters from debt collection agencies. She said this was extremely strange as this is not the correct procedure and that she would type a note up onto the system and would transfer me through to customer services.

 

I then spoke to a gentleman called Ben in the customer service department and explained the hole situation again. He said that he can not understand the system notes as they are very sketchy and that he could also see that my contract was a 12 month contract but the £849 pounds(approx) reordered as the final bill relates to an 18 month contract and is basically all terminations fee’s. He Then said he could see a note about the 18 month contract on an old system about an upgrade and a bill not being paid and that someone had called saying that the bill would be paid within 30 days or something along those lines.

 

I then explained to Ben that if the final direct debit was taken for my account on the 20th of october how could i then upgrade in January and February as the account was closed. He said he could not understand this either.

 

I then played devils advocate and said if o2 did not cancel the contract they could still not upgrade me as the last payment to be claimed by o2 was in oct 2006 the account would then be in arrears and 02 would have not let me upgrade to this he agreed.

 

I also said the same to Ben if i owe this money why have o2 never tried to make contact with me, he said according to notes on our system we have tried to call and email you with out success, but we have sent no letters which again is very strange. The reason you could not call myself is i was living in Abu Dhabi and the telephone in my uk home was canceled.

 

I then asked if it was possible this was a computer or systems error and he said it is possible as it does not seem to make any sense at all and that he would like to have his team leader Joe xxxx look into the matter with him and that he would like to call me back.

 

When Ben called me back he said his team leader and his operations manager had all looked at the account and agreed something was wrong and because of the urgency of the situation he would contact your department and inform you i would be e-mailing.

 

I need this resolved in a timely manner as this default registered against me is going to cause me to lose my job of 7 years as my employer does not employ anyone with adverse payment history on there credit file. All my finances are always in good order for this reason with no blemishes on my credit file, the reason for this is my character always paying bills on time.

 

This is how i would like the matter resolved.

 

A) I would like you to investigate this matter and if found that moneys are owed to o2 i will pay promptly on the condition that this default is removed from my credit file not just updated and marked as satisfied. I would require this in writing before payment is made and a brake down of where the final figure has come from.

 

B) If it is found that no moneys are owed to o2 i would request that this default is removed within 28 days from all three credit reference agencies.

 

 

 

 

The reason i believe that this action is justified are as follows.

 

Under situation A outlined above.

 

O2 have failed in there duty of care and not informed me in writing as to the intention to file a default against me.

O2 have never wrote to me on any occasion to inform me i owe money.

O2 have failed to collect money from my bank account via direct debit.

O2 have failed to comply with the Information commission officers guidelines with regards to applying defaults as this default has not been applied in a timely manner ie 3-6 months after no payment has been made.

Records ie payment history given to the three credit reference agencies are incorrect as they do not show when i have made payments (braking the data protection act)

 

Under situation B outlined above.

 

02 have recorded incorrect information about myself and passed this information on to the three credit reference agencies. (Data protection act )

 

I have also wrote to my MP Stephen Hepburn who may contact you about this and i give you full permission to give him or his secretary any information they request.

 

I will also be forwarding this letter to Peter Erskine your C.E.O

 

I would hope you can understand the seriousness of the situation and the position o2 has put upon me with my employer and would appreciate a swift and timely response to this problem.

 

As i am sure you can appreciate that the length of time passed without any communication with o2 my information has been from memory and records ie bank statements etc which would concur with my own recollection of events.

 

If i can assist you in any way please do not hesitate to contact me on the e-mail below or by telephone below.

Edited May 28, 2009 by alfa1_steve

[alfa1_steve]

Thank you locutus for your pm much appreciated.

 

 

I would love Buzby to give my letter the once over and give me his opinion before sending it tomorrow. where are you buzby lol

[buzby]

My only concern is that whilst the letter is competent and clear, it isn't concise and if you cannot fir it into a typical A4 sheet, will be wasted. You need to briefly outline the issues, how they got it wrong, and what they need to to resolve the issue to your satisfaction. Anything else is usually fraught with an inability to concentrate (by the recipient) on what you want and what went wrong.

[alfa1_steve]

Hi all

 

I have searched the internet without any luck and would like to know if any one has the e-mail address for the c.e.o of o2. A long shot i know but you never know.

[alfa1_steve]

Hi All

 

Just a quick up date.

 

I have received no response from o2 so will be e-mailing them again tomorrow. It has only been six working days but i would like to keep the pressure on.

 

On monday i will be contacting the ICO in the hope of getting a reference number.

 

i'll keep you posted.

[pin1onu]

Hi all

 

I have searched the internet without any luck and would like to know if any one has the e-mail address for the c.e.o of o2. A long shot i know but you never know.

If you don't mind using the snail mail try sending it to the CEO (Ronan Dunne) at the registered address for the company and mark it "private and confidential".

 

I've used this method several times before and it almost never fails to get to them. It usually means they have to read it themselves before some minion gets to deal with it.

 

I'm guessing that you've tried [email protected]? Have you tried inserting telefonica in the mix? (e.g. [email protected]) - just a thought.

[alfa1_steve]

Hi

 

All just another quick update no reply or contact from o2 as of yet will fire off another e-mail tomorrow.

 

I tell you for o2 being in the business of communication its a disgrace having to wait this long for a reply, but saying that if my experience is anything to go by the complaints department will have a huge back log of cases.

[buzby]

Why email? You know this is pointless (so far). Put it in an envelope and POST it - by Reocrded Delivery too to give it a bit of oomph. Letters like these are well liked should it go to court, as emails are too easily ignored due to 'server issues'.

[alfa1_steve]

Hi Guys 'n' Girls

 

I have an update from o2 which i am a little perplexed by.

 

I received a telephone call today from a gentleman in the complaints team, and to cut a long story short said

They will not remove the default and that the charges relate to an upgrade i must of received because they have it logged in there system that my sim card was used in the mobile telephone and tracked via the IMEI number and was last used at heathrow airport?

 

I am 99% sure i never received an upgrade though, i said to him do you not send new sim cards out with the telephone (They did with my partner when she upgraded to 3g from 2g) and he said in some circumstances they do but for every one and that it must of been myself that used it.

 

I also explained that he had broken ico guidelines on issuing default notices and breached the data protection act as only some of the information with th e credit file was correct.

 

He did not comment on the above then demanded payment within 28 days i said i would pay in full as long as the default is removed again he said o2 would not do that as the default reflects true payment history (in o2's own bloody mind!)

 

I also asked if they had a copy of the signature for the phone he said o2 do not require this ( but i definitely have it what a joke)

 

I then said i would take it further and asked him to pass on the information to the legal team as i will be going to court and he said he would and that he will type up the conversation in a brief e-mail and send it to me (still not received)

 

So i think the best course of action is wait for my sar and hopefully some of my complaints to filter through from ico, oft and hopefully my MP if he is not to busy buying a pigeon loft or something. Then if all else fails off to court and hope the judge can see common sense.

 

I also think i need to speak to a lawyer and look at all the angles make sure all basis is covered. I have saving's i can use but they would run out very quickly i think if the court wanted it to go multi-track but to be quite honest at the moment i don't care i want to go all the way and hopefully get something changed or set in concrete so people know where they stand.

 

I can't believe a company has all the power over an individuals life for 6years with no one to answer too but themselves. If any one knows of any lawyer that has experience in this area please forward there contact details.

 

Any ideas again appreciated

 

Thank you every one who has taken time out to help so far i have managed to get my employer to give me a 2 month career break to get "this issue" as they call it resolved so it's bought me a bit of time ( unpaid time, but time none the less)

 

Once again many thanks everyone!

[alfa1_steve]

This is the e-mail received by o2 today.

 

hank you for taking the time to speak to me yesterday.

 

As discussed, I can confirm that we will not be deleting the adverse information applied to your credit file. This is because you agreed to a new contract when you accepted the upgrade we sent you in January 2007. Though I appreciate that you can’t remember agreeing to this upgrade, the phone has been used with your SIM card and it was taken abroad.

 

I understand that you will be taking this further and you’re currently receiving legal advice. Once you’re ready to pursue your case, please contact our legal team.

 

The outstanding balance of £841.66 is correct and we require full payment of this before your account can be closed. Please contact us on 0870 2203297 to make a payment.

 

If you’ve any more questions about this, please call me on 0845 330 0684. I’m available Monday to Friday, 8.00am to 4.30pm. Alternatively, the department is open Monday to Friday, 8am to 6.30pm, and one of my colleagues will be able to help.

 

Kind regards

[alfa1_steve]

This is the e-mail i have fired back off to them

hank you for your e-mail dated 17 of june 2009.

 

Further to our conversation you state that i must of used the telephone because my sim card was in the telephone and from speaking to my partner who has been with o2 for a number of years she explained to me that when ever she upgraded her telephone a new sim card was in the box. So your records may be correct and show my sim card as being in the telephone but because you do not require a signature when delivered how do you know with out doubt it was me that used it, because as stated earlier i am as sure as i can be that the contract was canceled and no upgrade was agreed to.

 

A friend who used to work for o2 explained that it is standard practice to send a new sim card especially when the upgrade was a 3g telephone. From my memory you said the telephone i allegedly upgraded to was a w850i which is a 3g telephone and my telephone i had under contract with o2 was a w800i which is not a 3g handset. So o2's records may be correct it could of been my sim card that was in the telephone, the one you sent out with the telephone that you did not require a signature for upon receipt. I would suggest you contact the courier o2 used and start to ask some questions.

 

During our telephone conversation you made no reference to the points i raised in my previous e-mail dated 28 of may 2009 for which i would like a response as to o2's position on the matter.

 

The alleged upgrade started in january 2009 but o2 did not write to me to issue a default notice and then issued the default 1 year after the account was opened which is in breach of the information commission office guidelines as it states "Defaults should be applied in a timely manner ie within 3 months of the account going into arrears" and that "the data subject must be informed of the companies intention to file a default"

 

I would like a written response to each point please.

 

From doing further research into the matter i have found that your airtime agreement is not covered under a consumer credit agreement and because of this you may be under the impression that the ICO's guidelines do not apply to you but from speaking to them today i have found they do, so please do not state that you don't have to comply with the ICO guidelines as its not a consumer credit agreement as this will not be acceptable.

 

You told me on the telephone that you have sent letters which i have not received and that they are sent automatically i would like true copys of the individual letters you have sent to me including the default notice.

 

Because the contract i had with o2 was not covered under the consumer credit act it must mean that i have given permission for o2 to divulge my personal data to the three credit reference agencies i would also like a true copy of the contact i signed with o2 with these terms included.

 

Under data protection act 1998 i am afforded principle right over my information i request that o2 now stop processing my information in relation to account 07906780571 and inform all three credit reference agencies to delete all information under the above account number. I would suggest that you seek guidance from your data protection officer and i also request a response in writing or via e-mail

[buzby]

Just a few observations. You acknowledge this isn't a CCA regulated agreement, then go on to ask them for evidence of a 'Default Notice'. Since this is a requirement of the CCA you are going round in circles. O" have defaulted you, there is no requirement for a 'notice' declaring this fact.

 

You made a massive (and incorrect) leap of logic by assuming that because the CCA doesn't apply mobile contracts, they are somehow protected from the ICO and the DPA. They're not and never have been.

 

Requesting 'true copys' is irrelevant and refers to providing agreements. All you are asking for is a copy or template of the debt pursuit letters they sent. These will be standard 'form' letters, but as these are mail-merged at the time they have no requirement to keep a copy, as they know what's in it. They may send you a copy of the template used to create it or tell you of its content, but either way it is not of any major concern.

 

There is no requirement for O2 to provide you with a contract, they can refer you to the current T&C's available on their website, which will cover your agreement, and yes - you are advised that DCAs will be used to score your application and to provide information on your financial dealings with the network. This has been in place since 1996 for O2.

 

As to your last paragraph, you seem to think that the 'right to process' provides for removal of data. It does not. Whilst the network cannot modify (this the the continued processing) old and mothballed contracts, this does not make the details 'disappear' - so asking the data 'compliance' (not protection) staffer to verify your misunderstanding just comes across as bluster. Finally, a reply 'in writing' covers both postal and email communications - by phone it is verbal, and you do want to reject this.

[alfa1_steve]

Hi Buzby

 

Although this is not a cca agreement the ico rules still apply. When i have spoken to them they said the guidelines are worded in such a way that it does not only cover a cca agreement.

 

I did not say that o2 are protected from the ico and dpa but that a standard response that i am presuming i will receive ie this is not a cca agreement is not acceptable and there for the ico guidelines about placing default etc do not apply to us(o2) .

 

With regards to the letters i believe o2 should have true copys however they are produced, what ever they think they know. If they can not provide a contract how do they no i have accepted there terms because i allowed a dd from my bank? I don't think this is correct other wise there would be no point in having a contract in the first place.

 

Terms and conditions might be on there website but i am sure these would have been updated after my contract was taken out and it does not have my signature at the bottom.

 

If i have given permission for o2 to use my data then i should have the right to request them to stop recording information with third parties ie credit reference agencies.

 

Because if not then what your telling me is a mobile phone company can to what ever the hell it wants to any of its customers and there is nothing they can do about it?

 

Buzby as stated in earlier posts i respect your opinion because of the amount of years you have had in the industry, this is all very new to me and i need the problem resolved asap, so how about throwing me a bone and pointing me in the direction you yourself would peruse. I still believe my points around data protection ie asking them to stop processing information is a valid argument that i will look into further.

 

Again thanks for taking the time to reply buzby much appreciated.

[pelham9]

This appears to be a typical O2 muddle but I have to say that your account is also muddled without adequate dating and I feel it would be wise for you to write a full chronological account up to the time that you discovered the defaulted file on one of the CRAs. Exclude for the moment anything that has happened since your discovery. If this should go to court you will need this account so do it immediately

 

From various of your posts I have gleaned the following

 

In January 2005 (but it might have been 2006)

 

You took out a 12 month contract with O2.

 

Did they supply the phone?

 

From opening the account monthly sums were taken from your bank by direct debit.

 

In October 2006 you decided to cancel the account and rang them , was told that the account would be closed in February 2007 because they would have to pick up various foreign call that might have been made. You agreed to this.

 

Did you make calls on the phone subsequent to this particularly from abroad?

 

Some time in February(?) 2007 a sum of money was taken by O2 by direct debit. You then considered the account was closed.

 

You heard nothing further from O2 and in parrticular no accounts were rendered and the direct debit mandate which your bank confirms was in effect for one year (and then only suspended) after February (?) 2007 was not used by O2

 

January 2009? routinely checking your CRA files you found an O2 file (which must have been fairly recently entered by O2 because you check regularly) showing that an account started on 20/02/2007 was defaulted on 16/12/2007 with no payment from you being recorded.

 

Quite naturally you require an explanation from O2 and removal of the erroneous CRA file in its entirety. The only purpose of this file is to record a default which you maimtain is a nonsense.

 

You have tackled O2 who insist that your account was not closed but upgraded by you on 20/2/2007. They took no money by direct debit until they defaulted the account and now insist that you owe them £843. You deny this utterly. They say that they have sent correspondence consisting of default notices and accounts to you by post and you deny this. They say that the upgraded phone was used abroad in March 2007 but apparantly not subsequently but they have produced no evidence of this.

 

At present it is your word against theirs. However the fact that they have not used a valid direct debit mandate to fund the upgraded account makes it highly likely that there is an error on their side. They also claim the account was started on 20/02/07. It would seem that this was a new account of which you have no knowledge.

 

You must insist that they either produce a written contract for the upgrade signed by you or produce the actual recording of you contracting to the upgrade account by telephone.

 

If they cannot produce these they can do nothing and must look to their systems for the error - it could well be an identity theft.

 

If they cannot produce a written or telephonic contract you can deny any debt and insist that they remove the erroneous CRA file simply because their was no account or default.

 

If they subsequently try to recover the 'debt' in court you will defend on the grounds that no debt exists and counterclaim for removal of the CRA file AND substantial damages for libel.

 

If they rescind the debt but refuse rmoval of the CRA file (how can they take this position!) you make a claim as in the counterclaim above.

 

If they ignore you entirely after a reaonable time (say 10 days) you should take them to court not only to remove the default but for substantial damages.

[buzby]

Although this is not a cca agreement the ico rules still apply. When i have spoken to them they said the guidelines are worded in such a way that it does not only cover a cca agreement.

 

It is called 'fuzzy logic' It is not specifically mentioned, so it must be covered. Unfortunately, courts need specifics, not implied terms. The ICO can certainly suggest what they 'meant', but it remains open to the courts to interpreted as they see fit, and as we all know, any smart solicitor will pull out case law to prove anything - so before money is wasted in raising actions, you need to evaluate the chances of success, and since the ICO won't act for you as a supporting witness to corroborate your understanding of the rules, you're on your own.

 

With regards to the letters i believe o2 should have true copys however they are produced, what ever they think they know. If they cannot provide a contract how do they no i have accepted there terms because i allowed a dd from my bank? I don't think this is correct other wise there would be no point in having a contract in the first place.

 

Afraid what you think is reasonable and what actually happens in practice are not the same. I've been in court for many actions against consumers by the networks (these tailed off in 2002 or so, as they let the DCAs take over), but the courts readily accept as part of the 'electronic age' that contracts are legitimately entered into and seen to be valid when a consumer makes payment for services rendered. I agree, this is a pretty big leap, but as we're stuck with it there's little point complaining about it now, as there are plenty of precedents where this has been upheld.

 

Terms and conditions might be on there website but i am sure these would have been updated after my contract was taken out and it does not have my signature at the bottom.

 

We're going over the same ground. Have you actually READ a contract? I can almost guarantee you that there will be a clause stating that the firm can modify or change those terms of the contract by giving you 30 days notice of the amendment. At a stroke, this allows all users to be covered by the SAME terms and conditions as everyone else. Since your signature is NOT required on any contract, having it 'at the bottim' or indeed anywhere else is lost in antiquity. It may be you signed something at one time, it may not - but the fact you are bound to whatever is currently referred to as the current T&C's is now a fact of life.

 

If i have given permission for o2 to use my data then i should have the right to request them to stop recording information with third parties ie credit reference agencies.

 

Have you tried pushing water uphill? The whole point is if you don't want your data disclosed, you don't give permission at the start, not try to effect a change mid-term. In any event, they donl't have to agree.

 

For the record, you contract is an agreement between two (or more) parties. If there is something you dislike or don't wish to app;y, you cross it out and send it back. They may agree, they may not. If they don't then there is no service and the contract is voided. The same holds true if you wish to change a term within after the event. You tell them, and they agree or disagree. If the latter, your only recourse is then to terminate the contract ot buy out any minimum term to permit its cancellation. Once your con tract is concluded, they stop 'processing' your data, per ICO requirements - however data previously supplied to CRAs will remain as a historical record of your dealings. You may think this still amounts to 'processing' but again the courts disagree.

 

Because if not then what your telling me is a mobile phone company can to what ever the hell it wants to any of its customers and there is nothing they can do about it?

 

Not at all - if you agreed to a contract and took their supplied service, you have to work within the T&Cs they provide. If you didn't, they cannot hold you liable, so nothing like your assumption, that 'they can do whatever the hell they want to'.

 

The ONLY way you can stick it to them, is NEVER to have agreed to the terms that you disliked, and I heard someone referring to it in court as trying to push the toothpaste back into the tube! Many of the unsavoury factors of mobile phone ownership is unknown by the consumer, hey you still see forums full of people begging to know what the 'best deal' is.

 

The best deal is never, ever agree to a contract that you can avoid by choosing to go PAYG. With industry figures even stating 80% of users never reach their minute bundles each month, that's a lot of money for nothing, even before they make money from the defaulters by selling on the debt to third parties.

[pelham9]

Buzby

 

Surely we should not be arguing the niceties of contracts SARs etc but ascetaining if there was a contract in the first place.

 

The OP accepts that there was a contrct with O2 and that this was run completely normally payment being maade by direct debit until October 2006 when he phoned tto cancel it. Thereafter a direct debit amount was taken in February which he thought was the final payment and fully closed tthe account.

 

O2 claim that he upgraded the contract in Jan 2007 and continued to use the phone. The OP denies this. He says that he heard nothing from O2 subsequent to the payment in Feb 2007 (no bills, no intimation that he owed money, no moneys taken by direct debit etc) and it was only when he did a regular check of his CRA files that he discovered the situation. O2 however say that they did fully communicate with him. There was a direct debit mandate in place but the took no monies and as a result he was accused of non payment and a default marker was then put on a CRA file that was a recent addition. On the CRA file the account was said to be started in January 2009 not earlier so this appears to be a new account and not a continuation of the contract that the OP accepts was in place until Feb 2007.

 

Either the OPs account is a fabrication which I do not entertain for one moment or this is a classic cockup by O2. The OPs account hangs together but O2's account does not. The account of the various phone calls by the OP suggests O2 in disarray.

 

O2's position is that there is an upgraded contact in place to date. They have not so far supplied any evidence of this. That must be the first point to be settled either by a paper contract or a recorded phone contract.

 

O2 say that the OP owes some £843 but have taken no action to recover this and have not (I think) sent an account. Personally I think this sum is part of a scare tactic to make the OP think twice about taking court action which O2 appear to be encouraging.

[alfa1_steve]

Thankyou pelham9 and buzby for your replies.

 

Pelham9 what you have said has made a lot of sense to me as before you put this logical statement to me for some reason i could not see the wood for the tree's.

 

"If they cannot produce these they can do nothing and must look to their systems for the error - it could well be an identity theft.

 

If they cannot produce a written or telephonic contract you can deny any debt and insist that they remove the erroneous CRA file simply because their was no account or default.

 

If they subsequently try to recover the 'debt' in court you will defend on the grounds that no debt exists and counterclaim for removal of the CRA file AND substantial damages for libel.

 

If they rescind the debt but refuse rmoval of the CRA file (how can they take this position!) you make a claim as in the counterclaim above.

 

If they ignore you entirely after a reaonable time (say 10 days) you should take them to court not only to remove the default but for substantial damages."

 

 

I think in all honesty although i have quite a complex job in the financial services sector and deal with contracts, compliance, FSA, Law etc this situation made me panic because of the consequences to my career. From looking back on the last 2 weeks it just seems like a blind panic with the feeling of helplessness, but as i said earlier in the post you have enabled me to see the wood.

 

My career brake starts in 2 weeks as it has taken longer to find a replacement and she is currently shadowing me at the moment. The good new's is i have made a few good contacts within the legal department of the company i work for thanks to my boss, so hopefully they may be able to help.

 

I think it is like you said lets get back to basics here get a timeline drawn up of events.

 

Next port of call is to request this specific information while still waiting for my sar and see what they have?

I know they have nothing because as stated in earlier post i did not upgrade and i have received no notices from them despite what the system tell's the staff at o2, they have not passed it off to dca although i think it will be probable to o2 to do so soon.

 

Once i receive confirmation from o2 that they have no recording, contract signed telephone receipt etc then off to court

 

If they have a recording which i know will not be me then off down to the police for a crime reference number inform o2 then to court.

 

Another strange thing has happened also upon close scrutinizing of my credit file(normally only glance in case something has gone wrong like this) i have found that my old o2 account ie the 12 month contract has vanished and the only one that remains is this one?????????? Something funny i think.

 

I have e-mail the cra and asked when this entry was removed and the reason.

 

Buzby as you suggested i will now cross this out on contracts before entering in then and they will be read from start to end i can assure you.

 

I am horrified as to how unregulated the communication sector is and hope that this will change but i am not optimistic.

 

I am really pushed for time at the moment and will post a timeline with all information in segments.

 

Well a big thank you pelham9 for focusing my attention on the real issues and as always buzby vital, respected view and input. Thank you really does not say enough, the time everyone has taken to write replies, offer help and advice to a complete stranger is amazing.

 

As always any help or comments more than welcome and appreciated

[pelham9]

i do believe that the bank has a right to charge you for going overdrawn bouncing a dd, cheque etc but it should be line with there costs.

 

 

I do not think there is anybody on CAG who would disaqree with that.

[alfa1_steve]

Hi All

 

Does any one have any thoughts on the following point?

 

"Another strange thing has happened also upon close scrutinizing of my credit file(normally only glance in case something has gone wrong like this) i have found that my old o2 account ie the 12 month contract has vanished and the only one that remains is this one?????????? Something funny i think.

 

I have e-mail the cra and asked when this entry was removed and the reason."

 

many thanks:rolleyes:

[pelham9]

I for one find it peculiar that the 12 month original contract has disappeared. When a contract is cancelled the CRA file is marked with 'settlled' alongside the date of settlement.

 

But why are you worrying about this at this stage?

 

You have ample evidence from O2 that the original contract was satisfactorily settled because they claim that they started a NEW contract in response to your alleged phone request for an upgrade and it is this contract that they have defaulted and for this contract that they allege a £843 debt.

 

The proof of this alleged contract is the only thing that matters at this stage. If the contract is proved you will likelyl have a case to challenge the default marker and the alleged debt but if there is no contract ( made by you) then O2 is defeated at once.

 

Your SAR request may produce the information required but I doubt it. Surely it would be better to demand that 02 produce the recording of you 'making the contract'. If they refuse your only recourse is to force them to prove it by starting court action.

 

In some of your posts (O2 have picked up on this) you appear to be saying that you cannot be sure that you did not phone for an upgrade. If there is no recording you did not make the call !! It is not uncommon in these situations for people to fantasise or dream that they have taken an action and so doubts arise.